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ELCAllowedEx-parte Chamber Summons dated 5th July, 2021· [2022] KEELC 1646 (KLR)

Jane Wandera v Makueni County Sand Conservation and Utilization Authority [2022] KEELC 1646 (KLR)

Environment and Land Court
8 February 2022
MCMbogo C.G
1,748 words in judgment
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The bottom line

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The Makueni Environment and Land Court compelled a county authority to pay a court-awarded amount with interest, confirming that serving the right certificates forces government bodies to pay.

What this practically means

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Executive summary

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This was an ex-parte chamber summons dated 5th July 2021 brought by Jane Wandera under Sections 1A and 1B of the Civil Procedure Act, Order 53 Rule 1 of the Civil Procedure Rules and Sections 8(2) and 9 of the Law Reform Act, seeking leave to apply for mandamus compelling the Managing Director of the Makueni County Sand Conservation and Utilisation Authority to pay taxed costs of Kshs. 291,396 from ELC Judicial Review 3 of 2020, with 12% interest from 22nd February 2021. The applicant had obtained a judgment on 26th November 2020, had her bill of costs taxed on 22nd February 2021, and served the decree, certificate of taxed costs and certificate of order against the county government by email and physically between February and April 2021, with no payment forthcoming. The court framed a single issue: whether the applicant had complied with the legal requirements for mandamus. Applying Section 21 of the Government Proceedings Act and following Githua J's decision in Egunza, the court held that monetary decrees against government are enforceable only by mandamus against the accounting officer, and that service of the certificate of order is a condition precedent. Finding that all requisite documents had been served, the court issued the writ of mandamus compelling payment of the decree with 12% interest, and awarded the applicant the costs of the application.

Key legal issues

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01

Whether the applicant complied with the legal requirements for issuance of an order of mandamus

Holding

The court found the applicant fully complied with Section 21 of the Government Proceedings Act, having obtained and served the decree and certificates of order against the county government, and mandamus issued.

Reasoning

The court traced the service of the decree, taxed costs certificate and certificate of order against the county government on the respondent by email and physically between 22nd February 2021 and 6th April 2021. It found the certificate of order for costs against the county government was physically served on 31st March 2021 as evidenced by a receipt stamp, satisfying Order 5 Rule 22B of the Civil Procedure Rules and Section 21 of the Government Proceedings Act. Relying on Egunza, it held the accounting officer is statutorily bound to pay once the certificate is served, warranting mandamus with interest at 12% from 22nd February 2021.

p. 3

Legal principles established

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  • Monetary decrees against government can only be enforced by mandamus compelling the accounting officer, government being immune from execution under Section 21(4) of the Government Proceedings Act, and compliance with Sections 21(1) and (2) is a condition precedent.
  • Once the certificate of order against the Government is served on the Attorney General, Section 21(3) imposes a statutory duty on the accounting officer to pay.

Court orders

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  1. 1.A writ of mandamus issued against the Managing Director, Makueni County Sand Conservation and Utilisation Authority compelling him forthwith to satisfy the decree in ELC Judicial Review 3 of 2020 together with 12% interest calculated from 22nd February, 2021 until payment
  2. 2.The applicant to have the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure RulesOrder 53 Rule 1(1) and (2); Order 29; Order 5 Rule 22B
  • Law Reform ActSections 8(2), 9
  • Government Proceedings ActSection 21(1), (2), (3), (4)

Cases cited (3)

  • Kenya National Examination Council versus Republic Ex-parte Geoffrey Gathenji Njoroge & Others
    Civil Appeal No. 266 of 1996 [1997] eKLR
  • Republic versus County Secretary, County Government of Mombasa & 2 Others ex-parte Samuel Mutemi t/a Tudor Paradise
    [2021] eKLR
  • Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza
    [2012] eKLR
Jurisdiction invoked
Sections 1A and 1B of the Civil Procedure Act, Order 53 Rule 1(1) and (2) of the Civil Procedure Rules and Sections 8(2) and 9 of the Law Reform 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, "Jane Wandera v Makueni County Sand Conservation and Utilization Authority [2022] KEELC 1646 (KLR)", Case Analysis (2022). Ex-parte Chamber Summons dated 5th July, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1646/eng@2022-02-08

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