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ELRCAllowedJudicial Review Chamber Summons dated 29th March, 2023 (leave application)· [2024] KEELRC 142 (KLR)

Maritim v Governor, County Government of Bomet & 4 others (Judicial Review Miscellaneous Application E002 of 2023) [2024] KEELRC 142 (KLR)

Environment and Land Court
6 February 2024
HWHellen Wasilwa
1,048 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cleared the way to force Bomet County finance officials to personally ensure payment of Kshs 187,078 in court-awarded costs they left unpaid for three years.

What this practically means

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Executive summary

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This ruling by Hon. Lady Justice Hellen Wasilwa, delivered on 6th February 2024, determines an ex parte Chamber Summons dated 29th March 2023 brought by advocate Joshua Kipkemboi Mutai under sections 8, 9 and 10 of the Law Reform Act and Order 53 Rules 1 and 2 of the Civil Procedure Rules, 2010. The applicant sought leave to apply for an order of mandamus against the County Secretary, the CEC Member for Finance and the Chief Officer (Finance) of Bomet County, compelling them to pay Kshs 187,078 in taxed costs from Kericho ELRC Cause No. 111 of 2018, plus leave to cite them for contempt in default of payment. The applicant had acted for a claimant in the ELRC matter, which was compromised by a consent dated 22nd May 2018 with costs granted to the claimant; a certificate of taxation issued on 17th December 2019 remained unpaid despite service and repeated demands. The respondents were served on 27th July 2023 but neither entered appearance nor filed a response or submissions. Relying on the applicant's authorities on the duty of accounting officers to satisfy judgments against government under section 21 of the Government Proceedings Act, and the right of a successful litigant to enjoy the fruits of judgment, the court found the applicant's case established and allowed the application as prayed, granting mandamus against the respondents for payment of the taxed costs with interest from the date of the order, and ordered the respondents to bear the costs of the application.

Key legal issues

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01

Whether the applicant established entitlement to leave to seek mandamus against county officials for non-payment of taxed costs

Holding

Yes. The court found the case established and granted leave with mandamus to issue, compelling payment of the taxed costs of Kshs 187,078 plus interest from the date of the order.

Reasoning

The certificate of taxation issued on 17th December 2019 had been served on the respondents, who nonetheless failed to pay despite several demands and reminders over three years. Section 21 of the Government Proceedings Act imposes the duty to satisfy judgments against government on the accounting officers. The respondents did not enter appearance or file any response or submissions, so the application was uncontroverted. The court found the averments and submissions established the case as required by law.

p. 3

Legal principles established

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  • An order of mandamus issues where an officer or authority is under a statutory duty to perform an act and, despite demand, has not performed it; execution against a government or public authority lies only against the accounting or chief officer under a statutory duty to satisfy the judgment.
  • A decree holder's right to enjoy the fruits of judgment must not be thwarted; the court should adopt an interpretation favouring enforcement and securing accrued rights.

Court orders

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  1. 1.Leave granted to the ex parte applicant to apply for an order of mandamus against the 2nd, 4th and 5th Respondents to compel payment of the decretal sum of Kshs 187,078 being costs in Kericho ELRC Cause No. 111 of 2018 together with interest accrued from the date of the order
  2. 2.Costs of the application to be borne by the respondent

Authorities

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Legislation

  • Law Reform ActSections 8, 9 & 10
  • Civil Procedure Rules, 2010Order 53, Rules 1 & 2
  • Government Proceedings ActSection 21
  • Constitution of Kenya, 2010Articles 10, 48, 159(2)(a) & (b)

Cases cited (2)

  • Republic v County Government of Kiambu Ex parte Laban J Macharia Muiruri
    [2021] eKLR
  • Republic v Town Clerk of Webuye County Council & Another
    HCCC 448 of 2006
Jurisdiction invoked
Sections 8, 9 & 10 of the Law Reform Act; Order 53 Rules 1 & 2 of the Civil Procedure Rules, 2010

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, "Maritim v Governor, County Government of Bomet & 4 others (Judicial Review Miscellaneous Application E002 of 2023) [2024] KEELRC 142 (KLR)", Case Analysis (2024). Judicial Review Chamber Summons dated 29th March, 2023 (leave application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/142/eng@2024-02-06

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