Case ID:211408

Samic Construction Co Limited v County Government of Kisumu & another (Judicial Review E022 of 2022) [2023] KEHC 329 (KLR) (25 January 2023) (Ruling)

Case Metadata

Case Number:

Judicial Review E022 of 2022

Parties:

Samic Construction Co Limited v County Government of Kisumu & another

Date Delivered:

25 Jan 2023

Case Class:

Court:

High Court at Kisumu

Case Action:

Ruling

Judge(s):

Jacqueline Nancy Kamau

Citation:

Samic Construction Co Limited v County Government of Kisumu & another (Judicial Review E022 of 2022) [2023] KEHC 329 (KLR) (25 January 2023) (Ruling)

Court Division:

Judicial Review

County:

Kisumu

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Samic Construction Co Limited v County Government of Kisumu & another (Judicial Review E022 of 2022) [2023] KEHC 329 (KLR) (25 January 2023) (Ruling)

Neutral citation:

[2023] KEHC 329 (KLR)

Republic of Kenya

In the High Court at Kisumu

Judicial Review E022 of 2022

JN Kamau, J

January 25, 2023

Between

Samic Construction Co Limited

Applicant

and

The County Government of Kisumu

1

st

Respondent

The Chief Finance Officer County Government of Kisumu

2

nd

Respondent

Ruling

Introduction

1.

In its Notice of Motion dated 31

st

October 2022 and filed on 8

th

November 2022, the Ex parte Applicant herein sought an order of mandamus to compel the Respondents to pay the decretal sum of Kshs 614,394/= together with Kshs 100,000/= general damages, costs of Kshs 288,201/= and interest in Kisumu Chief Magistrate’s Court Civil Case No 558 of 2019 (sic).

2.

In the Supporting Affidavit of its Director, Samwel Otieno Boy that was sworn on 31

st

October 2022 June 2022, the Ex parte Applicant averred that at the instruction of the 1

st

Respondent herein, it constructed Kilo Picadily Road at a cost of Kshs 614,394/=. It contended that despite raising an invoice for the said sum, the 1

st

Respondent refused to pay the said amount as a result of which it filed Civil Case No 559 of 2019 at Kisumu Chief Magistrate’s Court.

3.

It added that Judgment was entered in its favour against the 1

st

Respondent herein for Kshs 614,394/= together with Kshs 100,000/= general damages, costs of Kshs 288,201/= and interest which the 1

st

Respondent had refused to pay despite several demands that it pays the same and being served with the Decree.

4.

On 15

th

December 2022, this court directed both parties to file their respective Written Submissions. It directed the Ex parte Applicant to extract the order for service upon the Respondents herein. On 11

th

January 2022, Richard Otieno Okungu swore a Return of Service on behalf of the Ex parte Applicant evidencing service of the said order of 15

th

December 2022 upon the Respondents herein.

5.

The Respondents did not file their Written Submissions and/or attend court either physically or virtually. On its part, the Ex parte Applicant filed undated Written Submissions on 10

th

January 2022. The Ruling herein is based on the said Written Submissions which the Ex parte Applicant relied upon in its entirety.

Legal Analysis

6.

The Ex parte Applicant sought an order for mandamus to compel the Respondent to pay Kshs 614,394/= together with Kshs 100,000/= general damages, costs of Kshs 288,201/= and interest that was awarded in Kisumu Chief Magistrate’s Court Civil Case No 559 of 2019.

7.

As was held in the case of

Kenya National Examination Council vs Republic Ex parte Geoffrey Gathenji Njoroge & 9 Others

[1997]

eKLR

, orders of mandamus and prohibition are issued where a person or body of persons had failed to perform the duty to the detriment of a party who had a legal right to expect the duty to be performed.

8.

Notably, the Ex parte Applicant did not attach any documents to demonstrate that it had in fact filed suit against the 1

st

Respondent herein and/or that the Trial Court had entered judgment in its favor against the 1

st

Respondent in Civil Case No 559 of 2019 Kisumu Chief Magistrate’s Court as it had contended.

9.

It did not also provide proof that it had extracted and served the Decree upon the 1

st

Respondent and/or that there was a decree in the first place. It did not also annex any documentary proof to show that it had in fact demanded the said amounts from the 1

st

Respondent and that it had refused to pay.

10.

In the absence of proof that judgment had been entered against the 1

st

Respondent and that the 1

st

Respondent had refused to pay the Ex parte Applicant’s claim, this court came to the firm conclusion that the Ex parte Applicant did not prove its case on a balance of probabilities. This court had due regard to the case of

Alfred S Mdeizi t/a Memicare Nursing & Maternity Home vs National Hospital Insurance Fund (NHIF)

[2016]

eKLR

wherein the plaintiff’s claim was dismissed for failure to prove its case on a balance of probabilities.

Disposition

11.

For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application dated 22

nd

June 2021 and filed on 23d June 2021 was not merited and the same be and is hereby dismissed.

12.

For the avoidance of doubt, this decision does not bar the Ex parte Applicant from filing another application with proof of claim for consideration by the court.

13.

In view of the fact that the 1

st

Respondent is a government institution, it would be punitive to award the government costs against its citizen. Consequently, each party will bear its own costs of this application.

14.

It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 25

TH

DAY OF JANUARY, 2023.

J. KAMAU

JUDGE