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ELRCDismissedJudicial Review Leave Application dated 4th August, 2023 (arising from Petition 7 of 2019)

Barus v County Assembly of Baringo & 3 others (Judicial Review E005 of 2023) [2024] KEELRC 656 (KLR)

High Court of Kenya (court name not stated on the face of the judgment; pronounced by Hellen Wasilwa, Judge)
19 March 2024
HWHellen Wasilwa
1,376 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused a mandamus application because the county government admitted it owed and would pay the Kshs 1,000,000 judgment debt.

What this practically means

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Executive summary

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This ruling determines the Applicant's leave application filed by chamber summons dated 4th August 2023 under Order 53 Rule 1(2) of the Civil Procedure Rules, in which Jane Chepkorir Barus sought leave to apply for an order of mandamus against the County Government of Baringo to compel payment of a decretal sum of Kshs 1,000,000 awarded in Petition 7 of 2019, judgment having been delivered on 25th June 2021. The Applicant averred that despite service of the judgment, decree and certificate of taxation, the Respondent had refused or neglected to pay for three years, and relied on authorities on the scope of mandamus, the requirements for the writ, and section 21(3) of the Government Proceedings Act, submitting that payment is not conditioned on budgetary allocation. The Respondent, through a replying affidavit sworn by County Secretary Jacob K Chepkwony, opposed the application, stating it had never refused to pay, had budgeted for the sum, and was raising it in the County supplementary budget, agreeing in principle to pay and seeking indulgence of two months and an out-of-court settlement. Only the Applicant filed written submissions. The court found that the Respondent's admission that it was ready and willing to settle the judgment sum rendered the judicial review application superfluous. It declined to grant leave to file the judicial review application and instead directed the Respondents to settle the decretal sum as admitted, with costs in the application. The ruling was delivered virtually on 19th March 2024 by Hellen Wasilwa, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant should be granted leave to apply for an order of mandamus to compel the Respondent to pay the decretal sum of Kshs 1,000,000 from Petition 7 of 2019

Key legal issues

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01

Whether leave should issue for judicial review mandamus to enforce payment of an unpaid decretal sum against a county government

Holding

Leave was refused because the Respondent admitted the debt and undertook to pay through the supplementary budget, making mandamus unnecessary

Reasoning

The court examined the averments and submissions and noted that in the replying affidavit the County Secretary stated the Respondent had agreed in principle to pay and sought two more months. Given this admission and willingness to settle, the court found the judicial review route superfluous and instead directed payment of the admitted sum.

p. 4

Legal principles established

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  • An admission by a public body that it is ready and willing to satisfy a decretal sum renders an application for leave to seek mandamus to enforce payment unnecessary

Court orders

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  1. 1.Leave to file the Judicial Review application for an order of mandamus declined
  2. 2.Respondents directed to settle the decretal sum as admitted
  3. 3.Costs in the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HW
majority

Wrote the judgment

Jurisdiction invoked
Order 53 Rule 1(2) of the Civil Procedure Rules (leave to apply for an order of mandamus)

Relief refused

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Leave to apply for an order of mandamus against the Respondent

The Respondent admitted liability and willingness to pay the decretal sum, rendering the judicial review application unnecessary

p. 4

Costs

Costs in the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the circumstances, I will decline the grant of leave to file the Judicial Review application as sought and instead direct the Respondents to settle the decretal sum as admitted.
p. 4Disposition - leave refused, payment directed
From the response of the Respondents, they are ready and willing to settle the judgment sum as ordered by court. The admission renders filing of a Judicial Review application superfiuous.
p. 4Basis for refusing leave - admission of the decretal debt
Costs in the application.
p. 4Costs order

Issues in the judgment

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minor

The judgment does not state the name of the court or station on its face; it is identified only by the judge's signature block ('HON. LADY JUSTICE HELLEN WASILWA JUDGE')

minor

The judgment repeatedly says the Applicant 'cited' the Court of Appeal case of Republic v Kenya National Examination Council Ex parte Gathenji and 9 Others [1997] eKLR, but that case is from 1997 while the judgment was delivered in 2024 - the citation is plausible; no internal contradiction beyond typos (e.g. 'sufiered', 'superfiuous')

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, "Barus v County Assembly of Baringo & 3 others (Judicial Review E005 of 2023) [2024] KEELRC 656 (KLR)", Case Analysis (2024). Judicial Review Leave Application dated 4th August, 2023 (arising from Petition 7 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/656/eng@2024-03-19

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