[2017] KEHC 2121 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARISSA

CIVIL CASE NO. 1 OF 2017

AKRAM CONSTRUCTION LTD....................................PLAINTIFF/APPLICANT

VERSUS

COUNTY GOVERNMENT OF GARISSA......1ST DEFENDANT/RESPONDENT

GARISSA COUNTY SECRETARY.................2ND DEFENDANT/RESPONDENT

RULING

This is an application brought by way of Notice of Motion by the plaintiff under Section 1, 1A, 1B of the Civil Procedure Act (Cap.21) as well as Order 10 rule 8 of the Civil Procedure Rules and Section 21 of the Government Proceedings Act.

The application was filed on 17th March 2017 under certificate of urgency, following the filing of a plaint on the 2nd February 2017, in which the plaintiff asked for five orders as follows:

1. A mandatory injunction do issue, compelling the defendants to forthwith pay the plaintiff the sum of Kshs 29,153,885. 55

2. Damages for the non-payment of the specified respective sums under paragraph 1 (of the plaint) above to the date of making of this order.

3. Damages for breach of contracts specified in paragraph 8 (of the plaint) above.

4. Costs of the suit.

5. Any other relief or orders that this honourable court may deem fit and just to grant.

In the plaint, the plaintiff claimed for payment of an amount which constituted the total amount for alleged breach of payment on four civil engineering contracts awarded to it by the 1st defendant, with an allegation that the plaintiff had completed the works but the 1st defendant and the 2nd defendant as the accounting officer had refused or neglected to pay the amount.

According to the plaintiff, service of the plaint was effected on the defendants but none of them had entered appearance or filed defenses within the statutory allowed period of time. The plaintiffs thus filed this Notice of Motion seeking the following orders:-

1. This motion be certified as urgent owing to the grave financial loss the plaintiff is suffering as a consequence of the non payment of the sums claimed herein for works rendered to the 1st defendants as pleaded, and service of this motion be dispensed with in the first instance.

2. Judgments be forthwith entered against the 1st defendant, County Government of Garissa, and the 2nd defendant, in default of defence within the time prescribed, having been served with process herein (summons to enter appearance to the plaint and accompanying pleadings ).

3. The prescribed certificate of order against the County Government of Garissa in favour of the plaintiff be issued by this honourable court after the expiration of 21 days after entry of judgment sought in prayer 2 of the motion, in the sum of Ksh 29,153,855. 55 together with accrued interests at the rate imposed on commercial loans set by the Central Bank of Kenya, calculated as follows-

(a) From September 2nd 2015 to the date of payment of the decretal sums in full in respect of contract number CGG/DTM/2/2015-2016;

(b) From 7th November 2016 to the date of payment of the decretal sums in full in respect of contract number CGG/T/60/2014-2015;

(c) From 3rd December 2015 to the date of payment of the decretal sums in full in respect of contract number CGG/T/6/2016-2015;

(d) From 2nd March 2016 the date of payment of the decretal sum in full in respect of contract number CGG/T/125/2014-2015.

4. Upon the effectual service of the certificate of order against the Garissa County Government on the 2nd respondent, the 2nd respondents (as the accounting officer) do pay the sums specified in the said order to the plaintiff's advocates, together with any interest lawfully accruing thereon as set out.

5. Costs of this motion be to the plaintiff in any event.

The Notice of Motion has grounds on its face. The grounds are that the entry of judgment sought herein was prescribed under Order 10 Rule 8 of the Civil Procedure Rules, as the 1st defendant was the Garissa County Government and not a civilian. That the failure to file defence had been inordinate and inexcusable, and that the delay had gobbled all the profits intended to be earned by the plaintiff causing grave prejudice and financial loss. It was also a ground that the procedure adopted herein was anchored on Section 21 of the Government Proceedings Act, and that the 2nd respondent as the accounting officer had a statutory duty to satisfy the judgment made by the court. Further that once the certificate of order was served on the 2nd respondent, Section 21 of the Government Proceedings Act imposed a statutory duty on the accounting officer to pay the sum specified in the said order together with interest lawfully accruing to the plaintiff's advocate.

The application was filed with a supporting affidavit sworn by Mohamed Ibrahim Shide described as director of the plaintiff company, who deponed to several advices given by the advocate for the plaintiff and stated that he believed that in view of the acknowledgement of debt made by the defendants by didn’t of the certificates of completion for the executed works, and in the absence of allegations of fraud or other grounds for vitiating the claims, it was clear that there was un mitigated admission of the debt.

To note that from the record, this application was served by a process server James Mukuni on 27th March 2017 and thereafter on 29th March 2017 Paul Mugwe & company advocates entered appearance for the defendants. On the same date the said advocates filed separate defenses for the 1st and 2nd defendants. In respect of the application, on the same 29th March 2017, the advocates filed grounds of opposition in the following terms:

1. The defendants have entered appearance and filed defence, as such judgment in default cannot be entered in the premises.

2. The 2nd defendant is not the accounting officer of the 1st defendants and therefore cannot be compelled to pay the claimed amount. In the circumstances the County Secretary has been wrongly enjoined in the suit.

3. The defendants have a plausible defence whose merits can only be determined after a full trial.

In response to the defence and grounds of opposition, Mohamed Ibrahim Shide swore an affidavit on 25th April 2017 which was filed on 26th April 2017. In the said affidavit he stated that leave was not sought to file the defence out of time and as such the defense filed was invalid. He also stated that the defenses were a sham as the defendants did not provide adequate material to support their allegations in the said defenses. The deponent also deposed that there would be a possible change of guard of the 1st defendant during the August 8th 2017 elections and as such the defence filed were intended to buy time and not meant to protect the interest of justice. According to him, the defence was also a general denial which did not give any facts to support the allegations that what was stated in paragraph 9 and 36 of the plaint was not correct or misleading. He also complained that the 2nd defendant had not refuted the legality or validity of the contracts, and he urged that in order to uphold this court’s dignity, and give effect to the principle of good governance and fairness under Article 10 (2) (b) of the Constitution the applicant be granted the orders sought.

Counsel on both side agreed to file written submissions to the application. The plaintiff counsel filed their written submissions on 20th June 2017. On 17th July 2017, Mr. Maziza who appeared in court for the defendants asked for an adjournment and a fresh hearing date. The court declined to fix another hearing date but gave counsel for the defendants 14 days to file and serve written submissions to the application. As I am now writing this ruling, I have not seen the written submissions of the defendants counsel, and I take it that they chose not to file the submissions.

I have considered the application , the documents filed the submissions of the counsel for the plaintiff as well as the authorities cited to me. The plaintiff's counsel relied on case of PAULINA KIKWAI LANGAT –VS- COUNTY GOVERNMENT OF BOMET and KEBINKO CONTRACTORS LTD( 2016) eKLR, as well as the case of OMINA BUILDING CONTRACTORS LTD –VS- ISIOLO COUNTY GOVERNMENT (2016) eKLR.

This application is an application for entry of judgment against the defendants in default of defence. It is also an application seeking that the prescribed certificate under the Government Proceedings Act be granted in favour of the plaintiff after the expiry of 21 days after entry of judgment. It is further an application requiring that after service of the certificate of order the sum specified in the order be paid to the plaintiff's advocate.

It is an application grounded on Order 10 rule 8 of the Civil Procedure Rules. The said Rule 8 of the Civil Procedure Rules provides as follows:

8 : “No judgment in default of appearance of pleading may be entered against the Government without the leave of the court and any application for leave shall be served not less than 7 days before the return day”.

I have perused the record of documents herein. The plaint was ordered by the Deputy Registrar of this court on 27th February to be served on each of the 2 defendants. There is an affidavit sworn on 16th March 2017 by Lukas Omolo Obuto a process server that on 27th February 2017 he served the plaint and summons to enter appearance on the defendants. This was not denied. The present application was also served by a process server James Mukuni on 27th March 2017 and an affidavit of service sworn on 28th March 2017 was filed in this court to confirm the service.

The defendants do not challenge the service. In my view the service of both the plaint and summons to enter appearance and the application were proper and within the requirements of the law.

The defendants on 29th March 2017 through counsel filed Memorandum of Appearance, 2 separate defenses for each one of the defendants, and grounds of opposition to the application.

The application is an application for entry of judgment in default of defence. The defence or defenses were certainly filed outside the period required of 7 days from service. No leave to file the same was sought, nor has any leave been sought to date, not even verbally by counsel for the defendants.

Do I take that the appearance and defence filed out of time wherein have been admitted as proper documents on record? In my view it cannot be. I am certain that Mr. Nyaga for the defendants knows that when he comes to court late with documents, he should at least have the courtesy of requesting for the said lateness to be regulated. This court cannot purport to enter the mind of an advocate or their client and decide for them what they have not asked for. In my view, if Mr. Nyaga had asked for the defence and appearance to be admitted out of time he could have done so. In the grounds of opposition they also did not request for leave to have the defence and appearance validated. I thus hold that the appearance, defences, and grounds of opposition are not properly on record.

Counsel for the plaintiff has sought for entry of judgment against the defendants. Order 10 Rule 8 of the Civil Procedure Rules confers power on this court to grant leave to enter judgment. Such leave is hereby granted, and judgment is entered against the defendant for the sum of Kshs.29,153,885. 55, with costs.

From the prayers sought in the plaint, it is clear to me that such leave granted herein is subject to formal proof, as the plaintiff has not just asked for a liquidated sum but has also asked for damages whose amounts have to be proved through evidence.

I thus allow the application and grant leave and enter formal judgment, against the defendants for the amount of Kshs.29,153,885. 55 with costs. However, as the plaintiff has asked for claims which have to be proved through evidence, I order that final quantum will be subject to formal proof.

Those are the orders of this court.

Dated and delivered at Garissa on 9th November, 2017.

GEORGE DULU

JUDGE