Republic v County Secretary County Government of Kirinyaga & another [2020] KEELC 1914 (KLR)
The bottom line
#The Environment and Land Court ordered Kirinyaga County Government to pay Ksh. 3.1 million plus interest after refusing to settle a court judgment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an order of mandamus should issue compelling the respondents to satisfy the decreed sum of Ksh. 3,142,288 plus interest at 12% per annum
- 2.Whether the respondents' claim that they were unaware of the underlying judgment and decree, and their threat to seek setting aside, excuses non-payment
- 3.Whether the applicants satisfied the test for mandamus, including prior demand, refusal, absence of other adequate remedy, and balance of convenience
Key legal issues
#Scope and test for the grant of mandamus in judicial review
Mandamus compels performance of a public duty imposed by statute or common law where the duty-bearer has refused to perform it to the detriment of a person with a legal right to expect performance; it is discretionary and granted where it is the efficacious remedy.
The court adopted the Court of Appeal's statement of the scope of mandamus in Kenya National Examination Council v Republic Ex-parte Geoffrey Gathenji Njoroge and the restatement in Mureithi & 2 others v Attorney General. It then applied the APOTEX test requiring a public legal duty owed to the applicant, satisfaction of conditions precedent, prior demand, reasonable time, express or implied refusal, no other adequate remedy, practical value, no equitable bar, and balance of convenience. Finding evidence of refusal to satisfy the judgment, decree, demand and certificate of order against the Government, the court concluded mandamus should lie on a balance of convenience.
Whether the respondents' assertions of lack of service and an intended application to set aside the underlying judgment defeated the mandamus
They did not. The respondents' complaints amounted to mere lament and their threatened setting-aside application remained a mere threat, with no impact on the duty to satisfy the decree.
The respondents argued they were never served with the petition or the decree, blamed their former advocates, and intimated an application to set aside the judgment. The court found this did not displace the established refusal: demand had been made on 7th December 2018 and the certificate of order against the Government had issued on 7th January 2019, yet payment was not made. The threatened set-aside application had not materialised and did not constitute an adequate answer or equitable bar to mandamus.
Legal principles established
#- Mandamus may issue to compel public officers to perform a statutory or common law duty, including satisfying money decrees against a government, where there is a clear right, a prior demand and a refusal to perform.
Court orders
#- 1.An order of mandamus compelling the respondents to pay the applicant the decretal amount of Ksh. 3,142,288 plus interest at 12% per annum from 9th August 2018 till payment in full
- 2.The respondents to bear the costs of these proceedings
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (mandamus to enforce a money decree against a county government); decree from ELC Petition No. 250/2012 (formerly ELC No. 34 of 2012)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the order which commends itself to me and which i hereby grant is an order of mandamus compelling the respondents to pay the applicant the decretal amount of Ksh. 3,142,288/= plus interest at 12% per annum from 9 th August 2018 till payment in full.
Clearly, there is evidence that the respondents have refused to act in satisfying the judgment, decree, demand and the certificate of order against the Government.
The respondent is only lamenting that her hitherto lawyers on record failed them and even threatened to set aside the judgment of the Court but these threats have remained as mere threats.
In view of my analysis above, I am satisfied that on a balance of convenience, mandamus should lie.
Issues in the judgment
#The KNEC v Njoroge case is cited as Civil Appeal No. 266 of 1996 but reported as '(1977) e K.L.R', an apparent typographical inconsistency in the year of the report.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Secretary County Government of Kirinyaga & another [2020] KEELC 1914 (KLR)", Case Analysis (2020). Judicial Review Misc. Application (Notice of Motion dated 1st July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1914/eng@2020-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.