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ELCAllowedJudicial Review Miscellaneous Application (Notice of Motion dated 8/12/2020)· [2022] KEELC 3652 (KLR)

Republic v Chief Officer Finance Nakuru County Government & another; Gichoya (Exparte) (Environment and Land Judicial Review Case 2 of 2020) [2022] KEELC 3652 (KLR)

Environment and Land Court
23 June 2022
MNMwangi Njoroge
1,741 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered Nakuru County Government to pay a 19-year-old court decree, ruling that vague budget-cycle excuses do not justify unpaid debts to judgment creditors.

What this practically means

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Executive summary

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The Ex parte Applicant, a successful litigant in Nakuru CMCC No. 1885 of 2003 against the Nakuru County Government (the 2nd Respondent), sought an order of mandamus compelling the Respondents, including the Chief Officer Finance, to pay Kshs. 4,720,960 comprising the decretal sum of Kshs. 4,200,000, interest of Kshs. 294,000 and assessed costs of Kshs. 226,960. The Respondents withdrew a preliminary objection and opposed the motion through a Replying Affidavit by George Kinyanjui, contending the application was premature and non-cognizant of the government budgetary cycle, as the decretal sum had been included in budgetary provisions for 2021/2022 forwarded to the County Assembly for approval under the Public Finance Management Act. Relying on Section 21 of the Government Proceedings Act and the Gathenji principles, the court found the Applicant had satisfied all conditions precedent, including obtaining a Certificate of Order and demanding payment. Non-compliance was evidenced by the Respondents' own letters of 25/03/2021 and 28/04/2021 requesting payment of outstanding decrees. The court distinguished the Gitonga budgetary-cycle authority, noting that the government there had provided a definitive payment timeline, which was absent here. Holding that mandamus was of practical effect with no adequate alternative remedy and no equitable bar, the court issued mandamus directing the Respondents to pay Kshs. 4,720,960 with interest and costs until payment in full, and awarded the Applicant costs of the application. Judgment delivered at Nakuru on 23 June 2022.

Key legal issues

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01

Whether the Ex parte Applicant was entitled to an order of mandamus compelling the Respondents to satisfy the decree in Nakuru CMCC No. 1885 of 2003

Holding

The application was merited; mandamus issued against the Chief Officer Finance and the Nakuru County Government to pay the decretal sum of Kshs. 4,720,960 with interest and costs.

Reasoning

The court found a public duty on the Respondents to pay, which they did not deny. The Applicant obtained the Certificate of Order and demanded payment. Failure to comply was evidenced by the Respondents' own letters of 25/03/2021 and 28/04/2021 requesting payment of outstanding court decrees. The budgetary cycle defence failed because no definitive timeline was communicated, mandamus was of practical effect, no adequate alternative remedy existed and no equitable bar was shown.

p. 4

Legal principles established

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  • Mandamus lies to compel a public authority to perform a public legal duty which it has failed to perform to the detriment of a party with a legal right to expect performance
  • A government's budgetary cycle does not excuse non-payment where no definitive timeline for payment is given

Court orders

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  1. 1.An order of Mandamus issued directed to the Respondents, namely the Chief Officer Finance and Nakuru County Government, to pay the Ex parte Applicant the sum of Kshs. 4,720,960 being the decretal amount in Nakuru CMCC No. 1885 of 2003 together with interest and costs as already calculated until payment in full
  2. 2.The Respondents shall pay to the Ex parte Applicant the costs of this application
Jurisdiction invoked
Judicial review jurisdiction to issue an order of mandamus under Section 21 of the Government Proceedings Act and the law of prerogative orders

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 Chief Officer Finance Nakuru County Government & another; Gichoya (Exparte) (Environment and Land Judicial Review Case 2 of 2020) [2022] KEELC 3652 (KLR)", Case Analysis (2022). Judicial Review Miscellaneous Application (Notice of Motion dated 8/12/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3652/eng@2022-06-23

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