Sammy Ekatorot Nawoi v Attorney General [2022] KEELRC 681 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Availability of Mandamus as the sole remedy against the Government
Mandamus is the only remedy available to enforce a monetary decree against the Government, since attachment of government property is prohibited by Section 21(4) of the Government Proceedings Act
The court relied on its prior decision in Cause No. 268 of 2017 and Section 21(4) of the Government Proceedings Act, holding that a decree-holder barred from executing against government property can only compel the accounting officer to pay through Mandamus. Without Mandamus, the applicant would hold a barren decree indefinitely with no effective remedy.
Whether awaiting funds from the National Treasury excuses non-payment
No. The statutory duty to pay is not conditioned on budgetary allocation, and delay in remittance does not excuse non-compliance with a decree
The Respondent argued Mandamus is discretionary and the court should consider economic conditions and the Covid-19 pandemic. The court rejected this, finding the argument dangerous as it would render judgments and decrees futile, and noted the decree had been outstanding for about two years without payment.
Nature of Mandamus
Mandamus is a prerogative order issued to compel performance of a public duty of an imperative nature owed to an individual, where there is no more appropriate remedy
Following Shah v Attorney General (No.3), the court held that Mandamus will be granted where the duty is a public duty affecting the individual, the authority is under a statutory or legal duty, and there is no more appropriate remedy. Here the accounting officer is under a statutory duty under Section 21(3) and no other remedy exists.
Legal principles established
#- A monetary decree against the Government can only be enforced by way of an order of Mandamus compelling the accounting officer to pay, as the Government is immune from execution and attachment under Section 21(4) of the Government Proceedings Act
- Once the certificate of order is served on the Attorney General, Section 21(3) imposes a statutory duty on the accounting officer to pay, not conditioned on budgetary allocation or parliamentary approval
Court orders
#- 1.That the Principal Secretary in the Ministry of Interior and Coordination of National Government pay the ex-parte applicant the sum of Kshs.914,471/= in fulfilment of the court order issued in ELRC No. 1113 of 2015 from the date of filing suit until payment in full as ordered in Judgment delivered on 6th December 2019
- 2.That the amount of Kshs.914,471/= is due and payable as confirmed by the certificate of order against the Government dated 23rd April 2021 and the Principal Secretary is ordered to pay the same
- 3.Costs of the application to be paid by the Respondent
- Jurisdiction invoked
- Section 21 of the Government Proceedings Act; Articles 10, 48 and 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sammy Ekatorot Nawoi v Attorney General [2022] KEELRC 681 (KLR)", Case Analysis (2022). Notice of Motion dated 23rd September 2021 (arising from ELRC Cause No. 1113 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/681/eng@2022-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.