Republic v Principal Secretary Ministry of Education & Principal Secretary Ministry of Finance and National Treasury; Ex parte Timothy Macharia [2021] KEELC 1573 (KLR)
The bottom line
#Kenya's High Court order compels government ministries to pay a Kshs 6.9 million judgment debt plus interest after the family won in court years earlier.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to mandamus to enforce a decree against the Government
A decree holder against the Government is entitled to mandamus compelling the accounting officers to pay, where there is a decree, certificate of costs and certificate of order against the Government and no appeal or stay.
The court noted that the Respondents did not file a replying affidavit to dispute the factual basis of the application, and that it was not disputed the Applicant held a decree, a certificate of costs and a certificate of order against the Government. No pending appeal or stay was contended. The only defence raised was non-service of the documents, which the court rejected as unproven since no affidavit denied service. The court was satisfied the Applicant was entitled to the fruits of his judgment without further delay.
Evidentiary weight of grounds of opposition unsworn to by affidavit
Assertions in grounds of opposition, not supported by a replying affidavit or denial on oath, do not constitute factual evidence capable of disputing the Applicant's claim.
The Respondents' sole defence was that the documents necessary for settlement of the decree were never served on them. However, they neither filed a replying affidavit despite having obtained leave to do so, nor any affidavit denying service or asserting that service was the only impediment. The court therefore declined to accept the statement in the grounds of opposition as factual evidence, leaving the Applicant's uncontested facts intact.
Legal principles established
#- Execution of decrees against the Government is barred by Section 21(4) of the Government Proceedings Act, and the only option available to a decree holder is judicial review by way of mandamus to compel the accounting officer to perform his statutory duty under Section 21(3).
Court orders
#- 1.An order of mandamus compelling the Principal Secretary Ministry of Education and the Principal Secretary Ministry of Finance and National Treasury to forthwith pay the ex parte Applicant the judgment debt of Kshs 6,915,000.00 plus interest at 14% per annum from 4th October, 2018 until payment in full
- 2.Payment to the ex parte Applicant of taxed costs certified at Kshs 352,830.00 arising from the decree of the Environment and Land Court Nyahururu dated 4th October, 2018 and issued on 4th June, 2020
- 3.The Applicant awarded costs of the application to be borne by the Respondents
- Jurisdiction invoked
- Order 53 Rules 1 and 3 of the Civil Procedure Rules, 2010; Section 21 of the Government Proceedings Act (Cap. 40)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Principal Secretary Ministry of Education & Principal Secretary Ministry of Finance and National Treasury; Ex parte Timothy Macharia [2021] KEELC 1573 (KLR)", Case Analysis (2021). Judicial Review Application (Nyahururu ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1573/eng@2021-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.