[2020] KEHC 517 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. 108 OF 2020

BETWEEN

REPUBLIC ............................................................................................APPLICANT

VERSUS

HON. MOSES AKARANGA.....................................................1ST RESPONDENT

VIHIGA COUNTY GOVERNMENT.......................................2ND RESPONDENT

CHIEF OFFICER FINANCE,

VIHIGA COUNTY GOVERNMENT......................................3RD RESPONDENT

COUNTY EXECUTIVE MEMBER FINANCE

VIHIGA COUNTY GOVERNMENT.....................................4TH RESPONDENT

EX-PARTE :.............................................................AGN KAMAU ADVOCATES

JUDGMENT

The Application

1. AGN Kamau Advocates, the ex parte Applicant herein, has moved this Court in an application brought by way of Notice of Motion dated 27th May, 2020, wherein it is seeking for an order of mandamus to compel the 1st, 2nd, 3rd and 4th Respondents to pay to it the sum of Kshs. 1,119,506. 05/=, being payment for the Advocate-Client Bill of Costs as taxed by the Deputy Registrar, Nairobi Judicial Review Division on the 27th November, 2019 in respect of Nairobi Judicial Review Misc. No. 35 of 2019(formerlyNairobi Judicial Review No. 513 of 2016).

2. The ex parte Applicant also sought an orders that in default, notice to show cause do issue against the Respondents to show cause why they should not be cited for contempt of court and that the costs of the application be provided for.

3. The said application is supported by a statutory statement dated 19th May 2020, and a verifying affidavit sworn on the same date and a supplementary affidavit sworn on 8th July, 2020 by Allan George Njogu Kamau,the ex parte Applicant’s proprietor.

4. The 1st Respondent did not file any response to the application, while the 2nd, 3rd and 4th Respondents filed a replying affidavit sworn on 29th June, 2020 by Alfred Indeche, the County Executive Committee Member for Finance of the County Government of Vihiga, in opposition to the application.

5. The respective cases of the parties are as follows.

The ex parte Applicant’s case

6. The ex parte Applicant averred that the 1st Respondent, while occupying the office of the Governor Vihiga County, orally instructed it to offer legal services in Nairobi Judicial Review Case No. 495 of 2016 as a matter of extreme urgency. Further, that to fully represent the interest of the 1st Respondent, the ex parte Applicant filed a Notice of Withdrawal of Nairobi Judicial Review Case No. 495 of 2016, and sought and was granted leave by the court to file the a new substantive suit on behalf of the Respondents being Nairobi Judicial Review Case No. 513 of 2016. The ex parte Applicant stated that it accordingly offered its legal services to the 1st Respondent in Nairobi Judicial Review Case No. 513 of 2016,when the 1st Respondent was Governor of Vihiga County, and in relation to proceedings relation to summons issued to him by Senate. However, that during the pendency of the matter in court the 1st Respondent ceased to occupy the position of the Governor of Vihiga County, and the said Judicial Review proceedings was marked as withdrawn.

7. It is the ex parte Applicant’s contention that the 1st Respondent thereafter failed to pay legal fees to it, necessitating the filing and service upon him of an Amended Bill of Costs together with the Notice of Taxation in Nairobi Judicial Review Misc. No. 35 of 2019 , which Amended Bill of Costs was taxed on the 27th November, 2019 at a sum of Kshs. 1,119,506. 05/= and a certificate of taxation issued on the 4th December, 2019. Further, that warrants of sale and attachment were subsequently issued as against the 1st Respondent who directed the ex parte Applicant to demand payment of the said sum from the 2nd Respondent as it exists in perpetuity and he had been sued as the County Chief Executive arising out of a chain of events commenced and executed by the 2nd Respondent.

8. The ex parte Applicant also averred that the said Certificate of taxation was forwarded to the Respondents but they had failed to settle the taxed sum. It asserted that the Respondents have a duty to pay a debt already decreed by a competent Court of law, which debt was now due and payable, and that the 3rd and 4th Respondents as the accounting officers of the 2nd Respondent are under a public duty to ensure that 2nd Respondent fulfills its legal obligations without fail. Therefore, that the 3rd and 4th Respondents had wrongfully and unjustifiably refused to perform their duties.

9. According to the ex parte Applicant, it is wrongfully being deprived of the fruits of its judgement as a consequence of the Respondents’ failure to pay the taxed amount in full and is thus suffering loss and damages. Further, that it has no other means of realizing its rightfully earned fees since it could not commence execution proceedings against the Respondents, and that the only avenue that it could reap the fruits of the judgement is through an order of mandamus to compel the Respondents to pay the Applicant.

10. The ex parte Applicant further stated that the instructions were given to it as a matter of urgency as there was a danger of warrants of arrest being issued as against the 1st Respondent if he failed to honour summons that had been issued by the Senate. According to the ex parte Applicant, the Public Procurement and Asset Disposal Act allows for direct procurement in cases of urgent need as the case herein as long as the purpose is not to avoid competition. He also stated that the said Act further allows direct procurement provided that the acquisition price is fair and reasonable and compares well with known prices of goods, works or services in the circumstances.

11. Therefore, that the ex parte Applicant had duly established a contractual relationship between the it and the Respondents, and that the 1st Respondent duly exercised the direct procurement rights under the Public Procurement and Asset Disposal Act. Accordingly that the 2nd, 3rd and 4th Respondents are estopped from denying the duty to fulfill their obligation of paying the ex parte Applicant the sum of Kshs.1,119,506. 05/= under the Certificate of Taxation, and it is not denied that the ex parte Applicant duly rendered the services procured by the 1st Respondent in matters relating to issues arising out of the 2nd Respondent’s affairs In conclusion, the ex parte Applicant averred that the said Respondents are trying to frustrate it without any justification.

12. The ex parte Applicant annexed copies of the pleadings filed and orders issued in Nairobi Judicial Review Case No. 513 of 2016, as well as the Advocates-Clients Bill of Costs, Certificate of Taxation, and warrants of sale and attachment issued to it against the 1st Respondent inNairobi Judicial Review Misc Appl. No. 35 of 2019. Copies of letter forwarding the certificate of taxation to the Respondents for purposes of payment were also annexed.

The 2nd, 3rd and 4th Respondents’ Case

13. The 2nd, 3rd and 4th Respondents stated that the 2nd Respondent is a Government for all intents and purposes by virtue of Section 21(5) of the Government Proceedings Act, and that procurement of goods and services provided to public entities is guided by Article 227 of the Constitution, the Public Procurement and Asset Disposal Act No. 33 of 2015 and the Public Finance Management Act No. 18 of 2012.

14. The said Respondents contended that the ex parte Applicant confirms that the 1st Respondent issued him oral instructions to represent him in the Nairobi Judicial Review Case No. 495 of 2016 as a matter of extreme urgency whereas the Public Procurement and Asset Disposal Act 2015 under Section 64 provides for mandatory written communication between parties for all procurement proceedings and as such, the oral instructions allegedly issued by the 1st Respondent could not suffice to institute a procurement proceeding by the 2nd Respondent.

15. The 2nd, 3rd and 4th Respondents’ case is that there was no procurement process; that there was no letter of instruction from the 2nd Respondent to the ex parte Applicant and therefore, there was no Advocate/client relationship by virtue of Sections 134 and 135 of the Public Procurement and Asset Disposal Act. Further, that in the absence of a written contract between the ex parte Applicant and the 2nd Respondent, the 2nd Respondent could not legally address the advocates’ Bill of Costs or make payments thereto. The 2nd, 3rd and 4th Respondents stated that for any public entity to enter into a contract with a supplier, there must be a tender process and method to strictly be adhered to as provided in Part IX and X of the Public Procurement and Asset Disposal Act 2015 which procedure was not followed in the present case.

16. They said Respondents further contended that the accounting officer of the relevant department is the authorised public officer by dint of Section 44 (2) and 135 (1) (2) of the Public Procurement and Asset Disposal Act mandated to award and enter into written procurement contracts on behalf of the public entity, and not the governor as alleged by the ex parte Applicant. In addition, that a mandatory element of a legal binding contract is capacity, and the 1st Respondent clearly had no legal capacity to enter into a procurement contract on behalf of the 2nd Respondent.

17. It was further their case that section 6 of the County Government Act provides for county governments to enter into contracts which are binding and in that regard, only use public funds for a lawful contract, and only as authorized by law. Further, that the 2nd Respondent was in this respect not a party to Nairobi Judicial Review Case No. 495/2016, Nairobi Judicial Review Case No. 513/2016 nor Nairobi Judicial Review Case 35/ 2019 matters, and only became aware of the existence of the said matters when the ex parte Applicant made a formal demand for payment. In addition, that the ex parte Applicant had failed to demonstrate to existence of a legal contractual relationship with the 2nd Respondent and was therefore not justified to unfairly enrich himself from public funds.

18. Lastly, the 2nd, 3rd and 4th Respondents stated that under Section 149 (1) and (2) of the Public Finance Management Act, accounting officers are required to ensure that the resources of the public entity are used in a lawful and authorised manner, contracts entered into by the public entity are lawful and the applicable accounting procedures are followed when acquiring services and goods for the public entity. They contended that the County Treasury by virtue of Section 149 (1) and (2) could not therefore make any payments to the ex parte Applicant as such payment is a contravention of Section 149 (1) and (2), and that further, section 121 of the Public Finance Management Act directs procurement of goods and services by county governments to be carried out in accordance with Article 227 of the Constitution and the Public Procurement and Asset Disposal Act. In conclusion, the 2nd, 3rd and 4th Respondents averred that any payment made to the ex parte Applicant will therefore be in violation of the Constitution and the law.

The Determination

19. The instant application was canvassed by way of written submissions, The ex parte Applicant filed submissions dated 14th July 2020, while Stella Amisi Orengo Advocate filed submissions dated 3rd August, 2020 for the 2nd, 3rd and 4th Respondents. The main issue for determination herein is whether the order of mandamus sought by the ex parte Applicant can issue in the circumstances of this case. An order of mandamus in this regard requires a public body to do some particular act as specified in the order, to enforce public law duties.

20. The ex parte Applicant submitted that an order of mandamus issues to an administrative authority to perform an imperative duty imposed upon it, and cited the decisions in R vs Minister for Local Government & Another Ex parte Mwahina [2002] 2 KLR 559, and Republic vs. Kenya National Examinations Council ex parte Gathenji & 8 OthersCivil Appeal No 234 of 1996 on the purpose of mandamus and circumstances when it can issue. The ex parte Applicant reiterated that the 2nd Respondent has a duty to pay the debt already decreed by the Court, and that the 3rd and 4th Respondents as the accounting officers of the 2nd Respondent are under a public duty to ensure that 2nd Respondent fulfills its legal obligations without fail.

21. Further, that the ex parte Applicant in its letter of the 27th January, 2020 to the Office of the Governor, County Government of Vihiga demanded satisfaction of the Certificate of Taxation dated the 4th December, 2019 and enclosed the same, but that the 2nd Respondent responded on the 6th April, 2020 claiming that the procurement procedures under the Public Procurement and Disposal Act had not been followed, and as a result was not obligated to settle the said Certificate of Taxation.

22. The ex parte Applicant in this respect submitted that it is unfair by the 2nd Respondent to hide behind technicalities in order to avoid to pay for legal services that were rendered for and on its behalf and on the instructions of its County Executive, and that Section 103(1 & 2) of the Public Procurement and Asset Disposal Act allowed the 1st Respondent to exercise direct procurement as long as the conditions under Section 103(2) are satisfied. The ex parte Applicant gave a detailed account of the circumstances in which its services were procured, to demonstrate that the 1st Respondent urgently instructed it orally as a matter of extreme urgency as provided under Section 103(2) (c) of the said Act.

23. Lastly, the ex parte Applicant submitted that the orders sought are merited and it is in the interest of justice and the public interest to enable him enjoy the fruits of his labour. The ex parte Applicant in this respect relied on the decision in Republic vs. Town Clerk of Webuye County Council & Another HCCC 448 of 2006.

24. The 2nd, 3rd and 4th Respondents on the other hand submitted extensively on, and reiterated the arguments made on the procurement of the ex parte Applicant’s services by the 1st Respondent. Its arguments were five-pronged in this regard. Firstly, that section 64 (1) of the Public Procurement and Asset Disposal Act provides that all communications and enquiries between parties on procurement and asset disposal proceedings shall be in writing, and that the oral instructions by the 1st Respondent to enter into the alleged contract for representation was contrary the said section, and there are no written instructions from the 2nd Respondent to the Applicant binding the 2nd Respondent to the alleged contract between the Applicant and the 1st Respondent. Secondly, that that sections 134 (1) and 135 (1) (4) and (5) of the Public Procurement and Asset Disposal Act which provide that such a contracts must be in writing and executed by both parties, and signed by, or with the authority of the accounting officer, were not adhered to.

25. Thirdly, that sections 44 (1), 135 (2), and (5) of the Public Procurement and Asset Disposal Act, the responsibility of entering into a binding contract between a supplier and the public entity lies solely with the accounting officer, and that the 1st Respondent was not an accounting officer for purposes of entering into procurement contracts on behalf of the 2nd Respondent. It was submitted that the accounting officers for County Governments are the respective chief officers appointed under section 45 of the County Government Act, and as the 3rd Respondent did not issue instructions to the ex parte Applicant, the 1st Respondent lacked legal capacity to enter into such contract. Fourthly, that the Applicant has failed to produce the minimum documents for procurement contracts as contemplated under Section 135 (6) of the Public Procurement and Asset Disposal Act.

26. Fifthly, on the question that arises is whether the instructions issued to the ex parte Applicant by the 1st Respondent met the procedure for direct procurement, the 2nd 3rd and 4th Respondents submitted that that the procurement process did not have a tender document, an ad hoc evaluation committee, the relevant approvals under the Public Procurement and Asset Disposal Act and it was not signed and section 104 of the said Act was thus not adhered to. It was thus the 2nd, 3rd and 4th Respondents’ submission that the contract entered between the ex parte Applicant and the 1st Respondent is null and void ab initio as the various provisions of the Public Procurement and Asset Disposal Act for creation of a valid procurement contracts had been breached. Reliance was in this respect placed on the decisions in Joseph Kamau Kiguoya vs Rose Wambui Muthike [2016] eKLR, and Multi-Line Motors (K) Ltd vs Migori County Government [2019] EKLR.

27. Lastly, the 2nd, 3rd and 4th Respondents submitted that the County Treasury of the 2nd Respondent has no mandate to make payment to the ex parte Applicant in violation of the Constitution and the law, and that the said Applicant is therefore not entitled to the remedies sought of payment of Kenya Shillings One Million, One Hundred and Nineteen Thousand, Five Hundred and Six and Zero point Five Cents. (Ksh. 1,119,506. 05/=).

28. The Court of Appeal in the case of Republic vs. Kenya National Examinations Council ex parte Gathenji & Others, (1997) e KLRexplained the applicable principles for an order of mandamus to issue as follows:

“The next issue we must deal with is this: What is the scope and efficacy of an ORDER OF MANDAMUS? Once again we turn to HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89. That learned treatise says:-

“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”

At paragraph 90 headed “the mandate” it is stated:

“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”

What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed….”

29. In Republic vs. Town Clerk, Kisumu Municipality, Ex Parte East African Engineering Consultants [2007] 2 EA 441, it was held that an order of mandamus compels a public officer to act in accordance with the law. The main principles that apply therefore for an order of mandamus to issue are firstly, that the Court will only issue a mandatory order if it concludes that it is the only decision lawfully open to the public body, and there is no other legal remedy that is available to remedy the infringement of a legal right.

30. Secondly, the Court will only compel the satisfaction of a public duty if it has become due, and if or where there is a condition precedent necessary for the duty to accrue, an order of mandamus will not be granted until that condition precedent comes to pass. Therefore, where there is a dispute as to whether a public duty has crystallised, the Court will not by an order of mandamus compel a Respondent to exercise that duty until the dispute is sorted out. Lastly, whereas the Court may compel the performance of the public duty where such duty is shown to exists, it will however not compel its performance or the exercise of its discretion in a particular manner.

31. In the present case, it is evident that there is a dispute as regards the legality of the procurement of the ex parte Applicant’s legal services, and as to whether there was a resultant contractual relationship between the ex parte Applicant and 2nd Respondent. To this extent, until and unless this dispute is resolved one way or another, this Court is not able to make a finding as to the existence of a public duty on the part of the 2nd, 3rd and 4th Respondents, to pay the ex parte Applicant the costs incurred in offering legal services to the 1st Respondent.

32. In addition, the resolution of the said dispute is beyond the remit of this Court’s judicial review jurisdiction. This Court as a judicial review Court cannot in this respect usurp the 1st Respondent’s role and duty as regards procurement of services, and is also not seized of the facts and information to be able to compel the 2nd Respondent to order any payments in this regard, especially in light of the conditions set out in the Public Procurement and Assets Disposal Act No. 33 of 2015 that require to be first met. Finally, this Court cannot compel the 2nd Respondent to exercise its discretion in a particular manner in the dispute between it and the ex parte Applicant.

The Disposition

33. In the premises, this Court finds that the ex parte Applicant’s Notice of Motion application dated 27th May, 2020 has been brought prematurely, and that the order of mandamus sought therein cannot issue for the foregoing reasons. The said Notice of Motion application dated 27th May, 2020 is accordingly struck out with no order as to costs.

34. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF DECEMBER 2020

P. NYAMWEYA

JUDGE

FURTHER ORDERS ON THE MODE OF DELIVERY OF THIS JUDGMENT

In light of the declaration of measures restricting Court operations due to the COVID -19 Pandemic, and following the Practice Directions issued by the Honourable Chief Justice dated 17th March 2020 and published in the Kenya Gazette on 17th April 2020 as Kenya Gazette Notice No. 3137, this judgment will be delivered electronically by transmission to the email addresses of the ex parteApplicant’s and Respondents’ Advocates on record.

P. NYAMWEYA

JUDGE