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ELRCPartially AllowedJudicial Review Notice of Motion dated 24.12.2018 (enforcement of decree in Kiambu CMCC No. 175 of 2016)· [2020] KEELRC 1686 (KLR)

Republic v County Secretary, Country Government of Kiambu & another [2020] KEELRC 1686 (KLR)

High Court of Kenya
7 February 2010
1,512 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ordered Kiambu County's Finance Chief Officer to pay a Kshs 17 million judgment debt, confirming mandamus targets the Accounting Officer, not the County Secretary.

What this practically means

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Executive summary

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This is a first-instance judicial review judgment of the High Court in which the ex-parte applicant, administratrix of the estate of Anthony Mungai Kirika (a Town Treasurer who died in a road accident in the course of employment), sought an order of mandamus compelling officers of the County Government of Kiambu to settle a decree of over Kshs. 17 million issued in Kiambu CMCC No. 175 of 2016. The respondents acknowledged the debt had not been paid but blamed their insurer's lawyers for failing to notify them of the trial judgment, and objected that the application was incompetent for want of the statutory thirty days' notice under Section 13A of the Government Proceedings Act. The court dismissed the notice objection, holding that judicial review proceedings under Order 53 are sui generis and are not governed by procedural law outside Order 53. On the merits, the court found the applicant held a valid unsatisfied decree, that the respondents were aware of it by letter dated 16.4.2018, and that the Chief Officer, Finance, is the Accounting Officer with the legal duty to pay the county's genuine debts. Relying on the Kenya National Examination Council v Republic ex-parte Geoffrey Gathenji Njoroge decision, the court held mandamus compels performance of statutory public duties and lies only against an officer duty-bound to act. It found the County Secretary does not perform the finance role under the County Government Act, so no mandamus could issue against the 1st Respondent. The Notice of Motion dated 24.12.2018 was allowed against the 2nd Respondent in terms of prayers 1, 2 and 3 - mandamus to pay the decretal sum, accrued interest, and costs - and dismissed against the 1st Respondent with no costs.

Key legal issues

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01

Whether the application is incompetent for failure to serve notice under Section 13A of the Government Proceedings Act

Holding

The objection lacks merit because judicial review proceedings under Order 53 are sui generis and are governed only by Order 53 and its rules

Reasoning

The respondent argued that no proceedings may be instituted against the Government until thirty days after service of written notice under Section 13A. The applicant responded that notice was served before the primary suit and that the present matter is merely an enforcement application. The court held that judicial review proceedings under Order 53 are sui generis and do not depend on any other procedural law, and accordingly dismissed the objection for lack of proper basis.

p. 2
02

Whether the threshold for mandamus was met against the Chief Officer

Holding

Yes - the 2nd Respondent is the Accounting Officer with a legal duty to pay genuine debts of the county government, and the decree remained unsatisfied

Reasoning

The applicant held a valid, unsatisfied decree against the county government, which the respondents had been made aware of by letter dated 16.4.2018. The respondents admitted they had not refused to pay. The court found the 2nd Respondent to be the Accounting Officer of the judgment debtor with the legal duty to pay debts, and relying on the Kenya National Examination Council precedent, found the threshold for mandamus satisfied against the 2nd Respondent.

p. 3
03

Whether mandamus could issue against the County Secretary

Holding

No - the County Secretary is not the Accounting Officer and does not play the finance role under the County Government Act

Reasoning

The court found that the 1st Respondent, the County Secretary, is not the Accounting Officer and suspected the applicant misidentified the job title. Since the County Secretary does not play the finance role under the County Government Act, mandamus cannot compel a person who is not duty bound to perform the act sought. The application against the 1st Respondent was therefore dismissed with no costs.

p. 2

Legal principles established

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  • Judicial review proceedings under Order 53 are sui generis and do not depend on procedural requirements outside Order 53 and its rules
  • Mandamus compels performance of a public duty imposed by statute and lies only against a person or body that has failed to perform such a duty to the detriment of a party with a legal right to its performance
  • Mandamus cannot issue against an officer who is not duty bound to do what the order compels

Court orders

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  1. 1.An order of mandamus issued against the 2nd Respondent (Chief Officer, Finance, ICT and Economic Planning, Kiambu County Government) to pay the decretal sum of Kshs. 17,201,960 as per the decree dated 8th October 2018 in CMCC No. 175 of 2016
  2. 2.Accrued interest from the date of the decree to payment in full to be borne by the respondents
  3. 3.Costs of the application and the chamber summons dated 9th October 2018 to be borne by the respondents
  4. 4.The application dismissed as against the 1st Respondent with no costs
Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules seeking an order of mandamus to enforce a decree against a county government

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 County Secretary, Country Government of Kiambu & another [2020] KEELRC 1686 (KLR)", Case Analysis (2010). Judicial Review Notice of Motion dated 24.12.2018 (enforcement of decree in Kiambu CMCC No. 175 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1686/eng@2020-02-07

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