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ELCStruck OutJudicial Review Application dated 28th February 2018 (Malindi)· [2019] KEELC 2555 (KLR)

Republic v Principal Secretary, Ministry of Lands, Housing and Urban Development Ex Parte Kenneth K Boit & another [2019] KEELC 2555 (KLR)

Environment and Land Court
11 July 2019
JOJ.O. Olola
1,041 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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You cannot force the Kenyan Government to pay a court judgment until you extract and serve a Certificate of Costs on the Attorney General.

What this practically means

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Executive summary

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The Ex-Parte Applicants, Kenneth K Boit and James C. Boit, sought an order of mandamus compelling the Respondent, the accounting officer in the Ministry of Lands, Housing and Urban Development, to settle a decree dated 25th September 2015 issued in ELC Malindi Case No. 119 of 2011 (formerly Nairobi HCCC No. 2577 of 1997) within 30 days, failing which warrants of arrest should issue, together with costs. They argued that the Respondent and the judgment-debtors had refused to settle the decree despite service, offending the rule of law and causing them double jeopardy of losing both their land and the compensation awarded. The Attorney General opposed, contending that the suit was an abuse of procedure, that the court was not the proper forum for execution of a decree, that the application did not comply with Order 53 Rules 1 and 2 of the Civil Procedure Rules, and that it was premature. The court analysed Sections 21(1), (2) and (3) of the Government Proceedings Act and held that while execution is not available against the Government, the accounting officer is under a statutory duty to satisfy judgments - but only after a Certificate of Costs has been extracted by the successful litigant and served on the Attorney General. Finding no evidence of such a certificate, only a decree and a demand letter, the court held that no public duty had arisen capable of compulsion by mandamus, agreed the application was premature, and struck it out with no order as to costs on 11th July 2019.

Key legal issues

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01

Whether mandamus could issue to compel the accounting officer to settle the decree

Holding

The application failed because the condition precedent under Section 21(1) and (2) of the Government Proceedings Act - extraction and service of a Certificate of Costs on the Attorney General - had not been fulfilled; the application was premature and was struck out

Reasoning

The court analysed Sections 21(1), (2) and (3) of the Government Proceedings Act, holding that payment by the accounting officer is triggered only after a Certificate of Costs is extracted by the successful litigant and served on the Attorney General. On the evidence, only a copy of the decree and a demand letter were attached; no certificate had been extracted or served. Consequently no enforceable public duty existed and mandamus could not lie.

p. 3

Legal principles established

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  • Execution proceedings are not available against the Government, but the accounting officer of the concerned department is under a statutory duty to satisfy a judgment against that department
  • Extraction of a Certificate of Costs and service upon the Attorney General is a condition precedent to the imposition of a statutory duty on the accounting officer to pay under Section 21(3) of the Government Proceedings Act

Court orders

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  1. 1.The application is struck out with no order as to costs

Authorities

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Legislation

  • Government Proceedings ActSection 21(1)
  • Government Proceedings ActSection 21(2)
  • Government Proceedings ActSection 21(3)
  • Civil Procedure RulesOrder 53 Rule 1 and 2
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules; application to compel satisfaction of a decree under the Government Proceedings Act

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 Principal Secretary, Ministry of Lands, Housing and Urban Development Ex Parte Kenneth K Boit & another [2019] KEELC 2555 (KLR)", Case Analysis (2019). Judicial Review Application dated 28th February 2018 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2555/eng@2019-07-11

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