Republic v Permanent Secretary, Internal Security, Office of the President & 3 others (Judicial Review E031 of 2023) [2023] KEELRC 2905 (KLR)

High Court of Kenya, Judicial Review Division

16 November 2023

CBChristine N. Baari

1,324 words in judgment

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The bottom line

The High Court in Kisumu dismissed a bid to force the Government to pay a Kshs 3.5 million award because the applicant named the wrong government parties.

What this practically means

Executive summary

This is a ruling on a notice of motion dated 17th July 2023 in which Stephen Onyango Ayugi, as Ex Parte Applicant, sought orders of mandamus compelling the Permanent Secretary Internal Security, the Chief Finance Officer National Treasury and Planning, the Permanent Secretary National Treasury and Planning, and the Attorney General to satisfy a judgment of Nduma Nderi J delivered on 21st February 2019 in Kisumu ELRC No. 367 of 2017, comprising Kshs. 3.5 million general damages for malicious prosecution, interest of Kshs. 2,641,166.70, taxed costs of Kshs. 616,535 and interest on costs of Kshs. 302,102.15. The Respondents did not oppose the motion despite service. Baari J framed a single issue: whether the Applicant was entitled to the orders sought. The court held that execution against the Government requires proof of compliance with Section 21 of the Government Proceedings Act, whose elaborate procedure gives the Government notice to satisfy the decree. Although certificates of order and costs had been served on the Regional Litigation Office of the Attorney General on 22nd November 2022, the court found that the Respondents named in the motion differ from the parties against whom the judgment was made (National Housing Corporation, Inspector Aggrey Amondi, Commissioner of Police, the Permanent Secretary and the Attorney General), and the Applicant offered no explanation for this discrepancy. Absent proof of a judgment against these Respondents which they had failed to honour, mandamus could not issue. The motion was dismissed with no order on costs on 16th November 2023.

Key legal issues

Whether mandamus lies to compel the Respondents to satisfy the ELRC decree

Holding

The application fails because the Respondents in this motion are not the parties against whom the judgment was rendered, and the Applicant gave no explanation for the substitution.

Reasoning

The court noted that execution against the Government requires proof of compliance with Section 21 of the Government Proceedings Act, which imposes an elaborate procedure to give the Government notice to satisfy the decree. Although certificates of order and costs were served on the Regional Litigation Office, the parties named in the motion (Permanent Secretary Internal Security, Chief Finance Officer National Treasury, Permanent Secretary National Treasury, Attorney General) differ from the judgment parties (National Housing Corporation, Inspector Aggrey Amondi, Commissioner of Police, Permanent Secretary, Attorney General). Without proof of a judgment against these Respondents, mandamus cannot issue.

p. 4

Legal principles established

Execution against the Government requires strict compliance with Section 21 of the Government Proceedings Act before mandamus can issue
Mandamus to enforce a decree can only issue against a party against whom a judgment exists and who has failed to honour it

Court orders

1.The notice of motion dated 17th July 2023 is dismissed
2.No order as to costs

Authorities

Legislation

Civil Procedure RulesOrder 53 Rules 1, 2 and 3
Civil Procedure ActSection 3A
County Government ActSection 134
Public Finance Management ActSection 129
Government Proceedings ActSection 21

Cases cited (2)

Permanent Secretary Office of The President, Ministry of Internal Security & Another Ex-parte Nassir Mwandihi
(2014) eKLR
Republic vs Kenya National Examination Council Ex-Parte Gatheni & Others
(1997) eKLR

Jurisdiction invoked: Order 53 Rules 1, 2 and 3 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, Section 134 of the County Government Act as read with Section 129 of the Public Finance Management Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Republic v Permanent Secretary, Internal Security, Office of the President & 3 others (Judicial Review E031 of 2023) [2023] KEELRC 2905 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2905/eng@2023-11-16

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