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ELCPartially AllowedMiscellaneous Application E049 of 2022· [2023] KEELC 16755 (KLR)

Republic v Attorney General & another; Gitukui & others (Suing as the Legal Representatives of the Estate of William Ngugi) & another (Exparte Applicants)

Environment and Land Court
2 March 2023
BEB M Eboso
1,923 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that the National Land Commission's Secretary, not the Solicitor-General, must pay decreed costs when the Attorney General was sued on the Commission's behalf.

What this practically means

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Executive summary

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The ex-parte applicants, having obtained costs of Kshs 838,815 taxed against the Attorney General and the National Land Commission in Thika ELC Judicial Review Case No 4 of 2017, sought an order of mandamus compelling the Solicitor General (for the Attorney General's Office) and the Secretary of the National Land Commission, as accounting officers, to pay the decreed sum. The Attorney General opposed, contending he had been sued in the underlying suit in his representative capacity as Principal Legal Advisor on behalf of the National Land Commission, so mandamus should issue only against the Commission's accounting officer. The National Land Commission did not respond. The court found the undisputed facts: costs were awarded and taxed, a certificate of costs and certificate of order issued and served, no appeal was pending, and the costs remained unpaid. Examining the pleadings in the underlying suit, the court held that the Attorney General had been sued on behalf of the National Land Commission and that no relief was sought or obtained against the department for which the Solicitor General is accounting officer. Relying on the framework in sections 21 and 22 of the Government Proceedings Act and the Orbit Chemicals decision, the court found the Solicitor General was not the proper accounting officer and that the Secretary of the National Land Commission was responsible. The motion was rejected against the Attorney General but allowed against the Commission: mandamus issued directing the Commission's Secretary to pay Kshs 838,815, with costs of the suit awarded to the ex-parte applicants against the 2nd respondent.

Key legal issues

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Whether the Solicitor-General is the proper accounting officer to be compelled by mandamus to satisfy the taxed costs

Holding

No. The Attorney General was sued on behalf of the National Land Commission, so the Secretary of the Commission is the responsible accounting officer.

Reasoning

The court examined the pleadings in the underlying judicial review suit and found the Attorney General was sued as representative of the National Land Commission. Sections 21 and 22 of the Government Proceedings Act require the accounting officer of the responsible department to satisfy decrees. No relief was sought or obtained against the department for which the Solicitor General is accounting officer, so mandamus lies only against the Commission's Secretary.

p. 3

Legal principles established

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  • Where a decree is issued against the Attorney General sued in a representative capacity, the accounting officer of the responsible government department must satisfy the decree
  • Mandamus to enforce a decree can only be directed against the accounting officer of the department on whose behalf the Attorney General was sued

Court orders

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  1. 1.Notice of motion dated 1/8/2022 rejected as against the 1st respondent (Attorney General)
  2. 2.An order of mandamus issued directing the Secretary of the National Land Commission, as the Accounting Officer of the Commission, to pay the ex-parte applicants the costs decreed in Thika ELC Judicial Review Case No 4 of 2017 in the sum of Kshs 838,815
  3. 3.The 2nd respondent to bear costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 156(1), 156(4), 156(5), 156(6)
  • Government Proceedings ActSections 12, 21, 22, 23

Cases cited (2)

  • Republic v Attorney General & another Exparte; Orbit Chemicals Limited
    [2017] eKLR

    Mandamus lies against the accounting officer of the relevant government department, not the Attorney General personally

  • Peter Anyang' Nyongo & 10 others vs Solicitor General
    [2011] eKLR

    Attorney General should advise his clients to pay costs for which he represented them

Jurisdiction invoked
Judicial review jurisdiction of the High Court/ELC under the law of mandamus and the Government Proceedings Act (leave granted 22/7/2022)

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 Attorney General & another; Gitukui & others (Suing as the Legal Representatives of the Estate of William Ngugi) & another (Exparte Applicants)", Case Analysis (2023). Miscellaneous Application E049 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16755/eng@2023-03-02

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