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ELCAllowedMiscellaneous Civil Application 39 of 2022· [2023] KEELC 21488 (KLR)

Republic v Secretary Kilifi Government & 2 others; Okunda (Exparte Applicant)

Environment and Land Court
9 November 2023
EME. K. Makori
636 words in judgment
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The bottom line

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A Kenyan court allowed a man to sue county officials directly to force payment of a decade-old court award the county government refused to settle.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (E. K. Makori, J) on a notice of motion dated August 2022 brought by George Enock Okunda, the ex parte applicant, under Order 53 rules 1, 2 and 3 of the Civil Procedure Rules 2010. He sought leave to apply for an order of mandamus compelling the Secretary of the Kilifi County Government and the Chief Officer Finance to pay him Kshs 1,450,587/-, being a decretal sum decreed in Malindi Chief Magistrate's Court Civil Suit No. 446 of 2010, judgment in which was entered in 2013. The applicant contended that all measures to execute the decree had borne no fruits, including failed negotiations to settle, and relied on the decision in Republic v The Principal Secretary State Department, Ministry of Interior and Coordination Ex parte Geoffrey Rono (JR No. E6 of 2021), where Wasilwa J granted similar leave. The respondents opposed, arguing the motion was misconceived, offended section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules, and was an abuse of court process. The court framed a single issue: whether leave should issue for the ex parte applicant to commence proceedings for mandamus. Finding the applicant had explained all steps taken to pursue settlement and that the opposition was unsupported by material facts, the court allowed the motion with costs on 9 November 2023.

Key legal issues

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01

Whether leave should be granted to commence judicial review proceedings for an order of mandamus to enforce a decretal sum against the County Government of Kilifi

Holding

Leave granted; the applicant demonstrated all steps taken to execute the decree of Kshs 1,450,587/- from Malindi CMCC No. 446 of 2010 had borne no fruits, and the respondents' opposition was unsupported by material facts.

Reasoning

The court found the applicant had explained, in the statement of claim and verifying affidavit (paragraphs 2 to 10), all steps taken to pursue settlement of the decree since judgment in 2013, including failed negotiations. Following the Rono decision where Wasilwa J granted similar leave, and noting the respondents' opposition lacked supporting material, the court found the matter appropriate for leave to seek mandamus to realise the fruits of the judgment.

p. 2

Legal principles established

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  • Where an applicant has taken all reasonable steps to execute a decree against a government entity without success, leave to apply for mandamus against the responsible officers may be granted.

Court orders

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  1. 1.Motion dated 20th August 2022 allowed with costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 53 rules 1, 2 and 3
  • Civil Procedure Rules 2010Order 29
  • Government Proceedings Actsection 21
  • Constitution of KenyaArticles 1(1), 2(1), 10(1)(b), 20(1), 23(1), 27(1), 28, 73, 156 and 165

Cases cited (1)

  • Republic v The Principal Secretary State Department, Ministry of Interior and Coordination Ex parte Applicant Geoffrey Rono
    JR No. E6 of 2021

    Wasilwa J granted leave to commence judicial review for mandamus to realise fruits of a judgment against a government officer.

Jurisdiction invoked
Order 53 rules 1, 2 and 3 of the Civil Procedure Rules 2010; Articles 1(1), 2(1), 10(1)(b), 20(1), 23(1), 27(1), 28, 73, 156 and 165 of the Constitution; Government Proceedings Act Cap 40

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 Secretary Kilifi Government & 2 others; Okunda (Exparte Applicant)", Case Analysis (2023). Miscellaneous Civil Application 39 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21488/eng@2023-11-09

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