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ELCDismissedJudicial Review Application (Notice of Motion dated 7th November 2017), Kerugoya· [2019] KEELC 869 (KLR)

Michael Wachiongo Baragu v County Government of Kirinyaga [2019] KEELC 869 (KLR)

Environment and Land Court
8 November 2017
3,640 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A 22-year-old court order against Kirinyaga County couldn't be enforced because the applicant missed the 12-year limit and skipped a required procedural certificate.

What this practically means

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Executive summary

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The applicant, Michael Wachiongo Baragu, obtained leave on 16th October 2017 to apply for mandamus compelling the County Government of Kirinyaga to comply with a decree issued on 6th February 1995 in Kerugoya SRMCC No. 59 of 1990 (Moses M. Gitonga & 2 others v Kirinyaga County Council), under which the defunct County Council was to allocate Plot No. 174 Kagio to him and his partner or provide an alternative site. In the alternative, he sought special and general damages for non-compliance, plus costs. The respondent opposed, relying on Section 4(4) of the Limitation of Actions Act, on the fact that it was not a party to the 1990 suit, and on the applicant's non-compliance with Section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules. The court framed three issues: entitlement to mandamus, the respondent's liability for its predecessor's actions, and costs. It accepted that mandamus compels performance of public duties by public bodies, adopting the Gathenji principles. However, it held that enforcement of an order against a County Government requires a certificate of order against the Government under Section 21 of the Government Proceedings Act read with Order 29 Rule 3, proved to have been served, none of which the applicant obtained. Further, the 1995 decree became unenforceable after 7th February 2007 under the twelve-year limitation in Section 4(4), with no reasonable explanation for the delay, following Willis Onditi Odhiambo and Koinange Investments. The alternative damages prayer was unavailable because leave for it was never granted, and the court lacked jurisdiction to award costs of previous proceedings absent an express decree. The Notice of Motion dated 7th November 2017 was dismissed with costs to the respondent.

Key legal issues

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01

Entitlement to an order of mandamus against the County Government

Holding

Mandamus was refused because the applicant did not comply with the precondition of obtaining and serving a certificate of order against the Government under Section 21 of the Government Proceedings Act and Order 29 Rule 3 of the Civil Procedure Rules

Reasoning

The court accepted that mandamus compels performance of public duties by public bodies, but held that Section 21 of the Government Proceedings Act prescribes the exclusive procedure for enforcing orders against the Government, including County Governments. No certificate was applied for or issued by the Registrar of the subordinate court, and there was no proof of service of the certificate, the order, or any demand on the respondent. Without these steps the respondent could not be compelled to satisfy the decree.

p. 3
02

Limitation of the 1995 decree

Holding

The 6th February 1995 decree could not be enforced because more than twelve years had elapsed under Section 4(4) of the Limitation of Actions Act and no reasonable explanation for the delay was given

Reasoning

The decree was issued on 6th February 1995 and ought to have been executed on or before 7th February 2007. The applicant offered no explanation for the 22-year delay. Following Willis Onditi Odhiambo v Gateway Insurance Co. Ltd and Koinange Investments v Ian Kahiu Ngethe, the court held that execution must be commenced within twelve years of judgment, failing which Section 4(4) bars it.

p. 3
03

Availability of the alternative relief for special and general damages

Holding

The damages relief was not available because leave to seek it was never granted, and the issue of damages ought to have been canvassed in the original subordinate court suit

Reasoning

The leave granted on 16th October 2017 covered only mandamus. Relying on Republic v Attorney General & another Ex-parte James Alfred Koroso, the court held that an applicant may not seek relief not set out in the statement for which leave was granted. Enforcement proceedings are confined to compelling compliance with the subordinate court's order, not to adjudicating new matters such as damages.

p. 4

Legal principles established

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  • Before mandamus can issue to compel a Government or County Government to satisfy a decree, the applicant must first obtain a certificate of order against the Government under Section 21 of the Government Proceedings Act as read with Order 29 Rule 3 of the Civil Procedure Rules, and prove service of the certificate and order on the respondent
  • A judgment cannot be executed or enforced after twelve years from the date of the judgment by virtue of Section 4(4) of the Limitation of Actions Act, absent a reasonable explanation for the delay
  • In judicial review proceedings a relief for which leave was not granted is not available to the applicant
  • A judicial review court has no jurisdiction to award costs of previous proceedings where the decree is silent on costs

Court orders

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  1. 1.The Notice of Motion dated 7th November 2017 is dismissed
  2. 2.The respondent shall pay the costs of these proceedings

Authorities

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Legislation

  • Limitation of Actions ActSection 4(4)
  • Government Proceedings Act, Cap. 40Section 21
  • Civil Procedure Rules, 2010Order 29 Rule 3; Order 29; Order 53
  • County Government Act
  • Local Government Act Cap 265 of the Laws of Kenya

Cases cited (7)

  • Republic Vs Kenya National Examination Council Ex-parte Gathenji & others
    Civil Appeal No. 266 of 1996
  • Willis Onditi Odhiambo Vs Gateway Insurance Co. Ltd
    (2014) e K.L.R
  • Koinange Investments and Development Company Limited Vs Ian Kahiu Ngethe & 3 others
    (2015) e K.L.R
  • Hudson Moffat Mbue Vs Settlement Fund Trustees & 3 others
    ELC No. 57 of 1992 (O.S) (unreported)
  • Republic Vs Attorney General & another Ex-parte James Alfred Koroso
    (2013) e K.L.R
  • Republic Vs County Secretary, Nairobi City County & another Ex-parte Wachira Nderitu Ngugi & Co. Advocates
    (2016) e K.L.R
  • Moses M. Gitonga & 2 others Vs Kirinyaga County Council
    SRMCC No. 59 of 1990 (Kerugoya)
Jurisdiction invoked
Judicial review jurisdiction of the High Court/ELC under the Law Reform Act and Order 53 of the Civil Procedure Rules (leave granted 16th October 2017 to apply for mandamus)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Michael Wachiongo Baragu v County Government of Kirinyaga [2019] KEELC 869 (KLR)", Case Analysis (2017). Judicial Review Application (Notice of Motion dated 7th November 2017), Kerugoya. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/869/eng@2019-11-08

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