Joseph Gesimba Getwambu v Kisii County Government

b. Judgment was delivered on the 25th day of August, 2022 wherein the said Plaint was allowed in favour of the Plaintiff was allowed. Among other orders, the ex parte Applicant herein was awarded the sum of Kenya Shillings One Million Two Hundred and Sixty-Two thousand Two Forty-Nine Eight Six Cents (Ksh. 1,262,249.86/=) only as General damages and costs of the Plaint. c. The ex parte Applicant subsequently proceeded to and filed his Bill of Costs which was taxed on the 27th day of February, 2023 and a Certificate of costs extracted and issued by the Executive Officer. d. The Decree, Certificate of costs and Certificate of Satisfaction Order have since been duly served upon the Chief Officer and County Attorney's offices, as required by Law. Despite such service, the Respondents have blatantly refused and/ or declined to satisfy the aforesaid Decretal amount. e. That it is apparent that the Respondents have deliberately refused and or ignored to settle the same hence the filing and or lodging of the instant Judicial Review proceedings. It is thus necessary and or imperative Orders sought herein be granted. Analysis and Determination 3. The issue for determination is whether the application meets the legal threshold for granting for judicial review in the nature of mandamus. 4. It is trite law that mandamus is a discretionary remedy, which may be denied even where the formal requirements have been met. However, such discretion is not to be exercised arbitrarily but must be informed by evidence, sound legal reasoning, and the interests of justice. A succinct understanding of an order of mandamus is that it compels a public officer to perfonn a statutory duty which they are bound to fulfill but have failed or refused to do so without justification. 5. The statutory provision under Section 8 of the Law Reform Act confers jurisdiction upon the High Court to issue orders of mandamus, certiorari, and prohibition, in accordance with the rules set out under the Civil Procedure Rules. Leave to file the instant review was granted by this court vide its orders dated 22.3.24. 6. The purpose of mandamus is to compel the performance of a statutory duty imposed upon a public officer or body, where there is a clear legal right to the performance of that duty, and a corresponding obligation on the part of the respondent to perform the same. In the Court of Appeal, the decision was made in the case of Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997} eKLR, the court held: “ An order of mandamus compels a person to perform a public duty imposed upon them by law. it cannot issue where there is no clear legal duty to act or where other remedies are available. '' 7. In the case Apotex Inc v Canada ( Attorney General),1963 can Lil 3004 (F.C.A),[1994} 1 F.C 742(C.A),andl994CAN Lil 47 (S.C.C),[1994] 3 S.C.R 1100 and, was also discussed in Dragan v Canada(minister of citizenship and immigration)2003 FCA 233 (Can Lll),2003 FCA).The factors that must be present for writ to issue are; i. There must be a public legal duty to act; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19739/eng@2025-10-23 2

page 2 of 3

ii. The duty must be owed to the applicants; iii. There must be a clear right to the performance of that duty, meaning that; a. The applicants have satisfied all conditions precedent and b. There must have been: i. A prior demand for performance. ii. A reasonable time to comply with the demand unless there was outright refitsal; and iii. An express refitsal, or an implied refitsal through unreasonable delay; iv. No other adequate remedy is available to the Applicants v. The Order sought must be of some practical value or effect; vi. There is no equitable bar to the relief sought; 8. The applicant has annexed copies of decree and certificate of costs, the mandatory 21 days demand notice under the Government proceedings Act, certificate of order and the affidavit of service of the same (annextures JGG 1-5). He told this court that despite the said service and notice the respondent refused and or neglected to make good the claim. The ex-parte applicant holds a valid decree against the respondent and thus the respondent which is a devolved government has a duty to satisfy the same. It is clear that the respondent has blatantly refused to satisfy the said decree. The exparte applicant has met the threshold for grant of the writ ofMandumus. 9. I proceed to allow the motion and grant the following orders; a. An order of Mandamus do and is hereby issue against the Respondents herein namely, the County Secretary, Kisii County Government and the Chief Officer, Finance, Economic Planning & ICT Services, Kisii County Government to compel them to proceed and pay out the Decretal sum of Ksh. 1,262,249.86/= only, being General damages and costs in Kisii Chief Magistrate's Court Case No. 38 of 2019: Joseph Gesimba Getwambu v County Government of Kisii whose judgment was delivered on the 25" August, 2022. b. I direct that the decree be satisfied within 3 months from today. c. In case of default execution to issue. d. Costs to the exparte applicant in the sum ofKsh. 50,000/= T.AODERA JUDGE 23.10.25 DELIVERED VIRTUALLY ON THIS 23RD DAY OF OCTOBER 2025 IN THE PRESENCE OF: Omandi for the Exparte Applicant NIA for Respondent CA Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19739/eng@2025-10-23 3

page 3 of 3