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Court of AppealPartially AllowedCivil Appeal No. 29 of 2001

Republic v Simon Quiggrey Ogila [2001] KECA 149 (KLR)

Court of Appeal
30 November 2001
1,379 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you cannot force the Government to pay a court award through mandamus without first obtaining a certificate under section 21 of the Government Proceedings Act.

What this practically means

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Executive summary

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The Court of Appeal (Gicheru, Lakha and O'Kubasu JJ.A) allowed an appeal by the Attorney-General against a ruling of Amin J delivered on 14 April 1999 granting the respondent, Simon Quiggrey Ogila, an order of mandamus directed at the Permanent Secretary, Ministry of Agriculture, Livestock and Marketing, as accounting officer, to pay a decree of Kshs.2,526,217.90 plus interest (Kshs.3,488,430.50 as at 4 January 1999). The decree arose from Ogila's successful suit against the Attorney-General for retirement from employment contrary to the regulations and in breach of contract, in which Aluoch J had awarded him Shs.55,680 plus costs and interest. The court held that section 21 of the Government Proceedings Act (Cap 40) sets out clearly the procedure for satisfying orders against the Government: the judgment creditor applies for a certificate after twenty-one days (or after taxation of costs), the proper officer issues it, a copy is served on the Attorney-General, and the accounting officer of the concerned department pays the certified amount with lawful interest; outside that section no execution or attachment may issue. Because no certificate had been applied for, Amin J erred in granting mandamus. Independently, the court had already allowed Civil Appeal No. 28 of 2001 between the same parties, setting aside the order of review and all consequential orders; Amin J's ruling being consequential to Aluoch J's ruling, this appeal had to follow. The appeal was allowed, the mandamus was set aside, and costs of the appeal were awarded to the appellant. The appellant's complaint that the decree contained figures not granted in the judgment was noted but left undetermined.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an order of mandamus could properly issue to compel payment of a decree against the Government where the procedure prescribed by section 21 of the Government Proceedings Act (Cap 40) - application for a certificate - had not been complied with.
  2. 2.Whether the ruling of Amin J, being a consequential order to the ruling of Aluoch J which the Court of Appeal had set aside (with all consequential orders) in Civil Appeal No. 28 of 2001 between the same parties, could stand.
  3. 3.Whether the decree as drawn complied with the judgment, the appellant complaining that it contained figures not granted in the judgment (raised by the appellant but not determined, the appeal having been disposed of on the section 21 point and the companion appeal).

Key legal issues

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01

Whether an order of mandamus could properly issue to compel the Permanent Secretary to pay a decree against the Government where no certificate had been applied for under section 21 of the Government Proceedings Act (Cap 40).

Holding

No. Section 21 prescribes the exclusive procedure for satisfying orders against the Government; because the respondent never applied for a certificate under section 21, Amin J erred in granting the order of mandamus.

Reasoning

Section 21(1) requires a person in whose favour an order against the Government has been made to apply, after twenty-one days (or, where costs require taxation, after taxation), for a certificate in the prescribed form, which the proper officer issues; a copy is served on the Attorney-General, and under section 21(3) the accounting officer of the concerned department pays the certified amount with lawful interest. Section 21(4) bars any other execution or attachment against the Government. The order sought was against the Permanent Secretary as accounting officer, yet no certificate had been applied for, so the grant of mandamus was erroneous.

p. 3
02

Whether Amin J's ruling could survive the setting aside, in Civil Appeal No. 28 of 2001, of the order of review and all consequential orders made in the same dispute.

Holding

No. Amin J's ruling was consequential to Aluoch J's ruling; once the order of review and all consequential orders were set aside in Civil Appeal No. 28 of 2001, this appeal had to be allowed.

Reasoning

The court had already determined Civil Appeal No. 28 of 2001 between the same parties, allowing that appeal and setting aside the order of review made in the respondent's favour together with all consequential orders. Amin J's ruling granting mandamus was a consequential order flowing from Aluoch J's ruling; it could not stand once the principal order was set aside. That companion decision therefore supplied an independent, dispositive ground for allowing the present appeal, in addition to the failure to invoke section 21 of the Government Proceedings Act.

p. 3

Legal principles established

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  • Enforcement of monetary orders against the Government must proceed through the certificate procedure in section 21 of the Government Proceedings Act (Cap 40); outside that section no execution, attachment or process in the nature thereof may issue against the Government, and no officer is individually liable.
  • An order of mandamus cannot properly issue to compel an accounting officer to pay a decree against the Government where no certificate has been applied for under section 21 of the Government Proceedings Act.
  • A ruling that is merely consequential to a principal order falls with that order; once the principal order is set aside, consequential orders cannot survive.

Court orders

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  1. 1.Appeal allowed.
  2. 2.The order of mandamus against the appellant (Attorney-General) set aside.
  3. 3.Costs of the appeal awarded to the appellant.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
High Court Misc. Civil Application No. 98 of 1999
Jurisdiction invoked
Not expressly stated in the judgment; the matter is a first appeal from the High Court at Nairobi to the Court of Appeal, but no constitutional or statutory provision conferring the appellate jurisdiction is cited.

Relief refused

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Mandamus directing the Permanent Secretary, Ministry of Agriculture, Livestock and Marketing, as accounting officer, to pay the decree amount of Kshs.2,526,217.90 plus interest (Kshs.3,488,430.50 as at 4.1.1999).

Section 21 of the Government Proceedings Act had not been complied with - no certificate had been applied for - and the ruling of Amin J was consequential to Aluoch J's ruling, which had been set aside with all consequential orders in Civil Appeal No. 28 of 2001.

p. 3

Committal of the Permanent Secretary to civil jail in default of payment (prayed in the underlying application for leave).

Sought in the application for leave but never granted; with the mandamus set aside no committal could lie, section 21(4) providing that no person is individually liable under an order for payment by the Government.

p. 3

Costs

Costs of the appeal are awarded to the appellant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The above sets out clearly the procedure to be followed in satisfaction of orders against the Government.
p. 3Section 21 Government Proceedings Act as the prescribed procedure for satisfying orders against the Government
no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Government of any money or costs
p. 3Exclusivity of the section 21 procedure; no execution against the Government (section 21(4))
Since a certificate had not been applied for pursuant to the above provision of the Government Proceedings Act then clearly, the learned Judge was in error when he granted the application for an order of mandamus.
p. 3Mandamus unavailable absent a section 21 certificate
As the ruling by Amin J was a consequential order to what Aluoch J had ruled, then it follows that this appeal must be allowed.
p. 3Consequential orders fall with the principal order
the inevitable result is that this appeal is allowed and the order of mandamus against the appellant is hereby set aside. Costs of the appeal are awarded to the appellant.
p. 3Final orders - disposition

Issues in the judgment

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minor

The judgment records the judgment sum as Shs.55,680 but the mandamus sought payment of a decree of Kshs.2,526,217.90 plus interest (Kshs.3,488,430.50 as at 4.1.1999); the appellant complained that the decree contained figures not granted in the judgment, but the court disposed of the appeal on section 21 and the companion appeal without resolving the discrepancy.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Simon Quiggrey Ogila [2001] KECA 149 (KLR)", Case Analysis (2001). Civil Appeal No. 29 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/149/eng@2001-11-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.