[2004] KEHC 23 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU Misc. App. 114 of 2000

A.N GEKE & COMPANY ADVOCATES............ APPLICANT

VERSUS

MUNICIPAL COUNCIL OF NAKURU RESPONDENT

RULING

This ruling is in respect of an application dated 1st December, 2003 filed byone Mr. Onesmus Mutua named therein as the "AFFECTED PARTY". TheApplicant, is a firm of advocates and the Respondent is the MunicipalCouncil of Nakuru. The affected party is the current Town Clerk of theMunicipal Council of Nakuru and his advocate, Mr. Mungai Mbugua, toldthe court that the affected party took up that position only a few months ago.The affected party prays that the warrant of arrest issued against the TownClerk ofthe aforesaid council be declared null and void and the same berecalled and cancelled.

The application was made on the grounds that a warrant of arrest had been issued against the affected party who is not the judgment debtor in the matter. It was also made on the ground that Section 263 A of the LocalGovernment Act does not allow arrest and detention of the Clerk. It wasfurther stated that the Town Clerk had been arrested on 2nd November 2001on account of the same debt and released at the instance of the Respondentand under Section 42(2) of the Civil Procedure Act the Judgment debtorcannot be imprisoned twice. The affected party also argued that the saidexecution process was irregular, illegal and fatally flawed because theexecution of a decree of costs cannot issue on a miscellaneous applicationfiled to tax a bill without a proper suit for recovery of costs having beenfiled.

The application was supported by an affidavit sworn by the affected party on1st December, 2003.

M/S S. N. Geke & Co. Advocates filed grounds of opposition dated 10thDecember, 2003 but did not file any replying affidavit. In their grounds ofopposition, they stated that the application had no merit and was meant toobstruct justice and was made in bad faith. They also stated that theapplication was unprocedural, an abuse of the court process and the orderssought were incapable of being granted by this court. They furthersubmitted that the application was incurably defective.

A brief background of this matter is an follows:-

Sometimes in 1998 M/S A.N. Geke & Co. Advocates, the Applicant, wereinstructed by the Municipal Council of Nakuru, the Respondent to file anapplication for an injunction against the National Housing Co-operationfrom taking over the management of the Respondent's houses out of a debtof Kshs. 150,612,292. 40 in Nakuru High Court case No. 463 of 1998. Thismatter was eventually settled and the suit was withdrawn. On 19 May,2000 the Applicant filed a Miscellaneous Application Number 114 of 2000and prayed that the advocate/client bill of costs be taxed and the costs of theapplication and interest on the amount taxed on the bill of costs be paid bythe Respondent. Filed together with the said application was anadvocate/client bill of costs amounting to Kshs.5,551,597. 60. On 13 June,2000 the said bill of costs was by consent taxed at Kshs.4. 3 million and on21st July 2000 a certificate of costs was issued by the Deputy Registrar. On1stAugust, 2000 the Applicant wrote a letter to the Deputy Registrarrequesting that a notice to show cause be issued against the Treasurer andthe Town Clerk of the Respondent as to why they should not be committedto civil jail for failing to remit what they referred to as "the decretal amountas per the bill of costs."

On 3rd August, 2000 a Notice to Show Cause why execution should not issueunder Order XXI Rule 18 of the Civil Procedure Rules was issued againstthe Respondent's Town Clerk and he failed to attend court and a warrant ofarrest was issued against him and when he was brought to the court on16/8/2000 he was released on a bond of Kshs. 100,000/- and ordered toappear in court on 23rd August, 2000. On that date the Applicant told thecourt that it had been agreed that the Town Clerk was to pay a sum ofKshs.300,000/- on that day and the matter be mentioned on 19th September,2000. After some mentions of the matter, the Town Clerk was taken to courton 2nd November, 2001 under a warrant of arrest and after hearingarguments from both parties, the Deputy Registrar ordered that the TownClerk be committed to civil jail for one month.

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However, the court granted a stay of execution on condition that the"Judgment Debtor deposits with the decree holder" a sum of Kshs. 150,000/-pending the filing and prosecution of a formal application for stay ofexecution before the High Court. He was released on a bond ofKshs.200,000/-. On 5th November, 2001 a consent order was recorded to theeffect that the Respondent release a banker's cheque of Kshs. 150,000/- tothe Applicant forthwith and another banker's cheque of Kshs.200,000/- on31/12/2001 and a review on the mode of payment of the balance be done on5/2/2002 and that the Town Clerk's bond be extended to 31/12/2001. On 5thApril, 2002 the Applicant informed the court that "the Judgment Debtor"had not complied with the previous consent orders and prayed that a warrantof arrest against the Town Clerk be issued so that he could be brought tocourt to show cause why he could not be committed to civil jail and the courtgranted the application.

The record shows that the general trend in this matter was that theRespondent would make some payment only when a warrant of arrest wasissued against its Town Clerk and in turn the Applicant would give theRespondent a breather while interest on the unpaid balance continued toaccrue.

On 16th December, 2003 when the present application came up for hearingthe learned counsel for the affected party submitted that all the applicationsmade by the Applicant for the arrest of the Respondent's Town Clerk andthe subsequent warrants of arrest issued against him were all wrongly issuedas the execution proceedings were irregular and fatally flawed. He submitted that the Applicant, upon obtaining a certificate of costs, shouldhave filed a suit to recover the money that was due and payable. TheRespondent would then have been entitled to defend the suit and if it had acounter-claim, file the same. He relied on the Court of Appeal decision inM.G. SHARMA VS UHURU HIGHWAY DEVELOPMENT LTD. CivilAppeal No. 133 of 2000 (NAIROBI).

He further submitted that the Town Clerk was not the judgment debtor in thematter, it was the Municipal Council of Nakuru. He also submitted thatunder Order XXI Rule 36(b) the Town Clerk could only be examined on theability of the council to pay the decretal sum. He referred the court to theprovisions of Section 263A of the Local Government Act Cap 265 of theLaws of Kenya which deals with execution of process against localauthority. The same states as follows:-

"JWiere any judgment or order has been obtained against a localauthority, no execution or attachment or process in the nature thereofshall be issued against the local authority or against the immovableproperty of the local authority or its vehicles or its other operatingequipment, machinery), fixtures or fittings, but the Clerk of the localauthority shall, without delay, cause to be paid out of the revenue ofthe local authority such amounts as may, by the judgment or order, beawarded against the local authority to the person entitled thereto. "

He stated that if the Applicant had obtained orders of mandamus against theaffected party compelling him to pay the money owed and he failed to do so,then the a ffected party would be liable for arrest for contempt of court. The learned counsel for the Applicant Mr. Okaru conceded that no suit wasfiled after the taxation and according to him there was no need of doing sobecause "a consent judgment" had been entered between the Applicant andthe Respondent. He further submitted that there were even further consentsentered into between the Applicant and the Respondent for paying themoney by installments which had not been honoured. He said that theaffected party and the Respondent cannot be separated and he quoted theprovisions of Section 263 A of the Local Government Act and asserted thatit was the affected party who had failed to pay the money due and owing tothe Applicant and so, according to him, the only mode of compelling theTown Clerk to pay was to arrest and detain him in civil jail.

Another argument that was advanced by Mr. Okaru was that the order forthe arrest and committal to civil jail as against the affected party was issuedby the Deputy Registrar in his enhanced jurisdiction as a High Court Officerand therefore the application for stay and or setting aside of the order wasnot properly before the court. He further submitted that Section 66 of theCivil Procedure Act Provides that Decrees of the High court should bechallenged in the Court of Appeal. He therefore concluded by submittingthat the application was wrongly before this court and urged the court todismiss it with costs.

Mr. Nyamwange, the learned counsel representing the Respondent submittedthat the Deputy Registrar does not exercise the power of a Judge of the HighCourt even when he taxes a bill of costs. He said that a Deputy Registrar is given special powers under Order 48 of the Civil Procedure Rules and sothis court had the capacity to hear the application before it.

Having set out the history of the matter and the opposing arguments I nowwish to examine the various issues which have arisen herein and determinethe same. It is imperative that I first of all consider whether this court hasthe jurisdiction to hear and determine this application and if it does not, Ihave to down tools and make the appropriate orders.

Order XL,V11I Rule 3 of the Civil Procedure Rules provides as follows.-

"Formal orders of attachment and sale of property and for the issueof notices to show cause on applications for arrest and imprisonmentin execution of a decree of the High Court may be made by theRegistrar or, in a subordinate court, by an Executive Officer generallyor specially thereunto empowered by the Chief Justice by writingunder his hand, but in the event of any objection being taken to theproceedings thereunder, all further proceedings shall be before aJudge. Such objection shall be taken by motion on notice. "

There is no dispute that the Applicant's application for notice to show causewhy the affected party could not be arrested and be committed to civil jailwas brought before the Deputy Registrar Mr. Ateya purportedly under theabove quoted provisions of the law. Section 66 of the Civil Procedure Actstates that an appeal shall lie from the decrees or any part of decrees andfrom the orders of the High Court to the Court of Appeal.

First of all, both of the above provisions of the law refer to a decree of theHigh Court whereas in this matter there is no decree at all. A decree is verydifferent from a certificate of costs. When the Applicant filed its bill ofcosts for taxation, a consent on the amount payable was recorded andthereafter a certificate of costs was issued, not a decree.

Order XX Rule 8 of the Civil Procedure Rules provides that where theamount of costs has been agreed upon between the parties or fixed by theJudge or Magistrate before the decree is drawn or certified by the Registrarunder paragraph 68 A of the Advocates (Remuneration) Order or taxed bythe court, the amount of costs may be stated in the decree or order. Thecertificate of costs dated 21st July 2000 was not capable of execution nor wasthe consent order dated 22nd June 2000. It was therefore not right for theApplicant to write in its letter dated 1st August, 2000 that the affected partyhad failed to remit "the decretal amount as per the bill of costs". The term"decretal amount'refers to the sum payable under a decree. A decreemeans the formal expression of an adjudication which, so far as regards thecourt expressing it, conclusively determines the rights of the parties withregard to all or any of the matters in controversy in the suit.

In terms of Order XLVIII Rule 3, once an objection arises in proceedingsbeing conducted by a Registrar, further proceedings are taken before a Judgeand not before the Court of Appeal. This court therefore has jurisdiction tohear and determine the aforesaid application.I now wish to examine whether the execution process as undertaken by theapplicant was lawful and procedural.

Rule 13 of the Advocates (Remuneration) Order allows an Advocate to filehis bill of costs against his client for taxation in a miscellaneous cause whichthe Applicant herein did on 19th May, 2000. The same was taxed by consentat Kshs.4,300,000/- and thereafter a certificate of costs was issued. TheApplicant then took this certificate of costs to be a decree of the court andapplied for the issue of a notice to show cause why execution should notissue. The right procedure would have been for him to file a suit forrecovery of costs using the certificate of costs as the main weapon or basisof the suit.

In Civil Appeal No. 133 of 2000 at Nairobi, M.G. SIIARMA VS UHURUHIGHWAY DEVELOPMENT LIMITEDJustice Akilano Akiwumi, J.A.(as he then was) stated that the taxation of costs under Rule 13 of theAdvocates Order does not by itself amount to a judgment. Rule 13(1) statesas follows:-

"The taxing officer may tax costs as between advocate and clientwithout any order for the purpose upon the application of theadvocate or upon the application of the client............ ".

This taxation can be contested or may be done by consent as was the case inthe present matter. Section 48 and 49 deal with suits for recovery of costsafter the bill of costs has been either taxed or filed. Where the costs have been taxed and certified and subsequently a suit has been filed for therecovery of the same, the court may enter judgment by consent. There cannot be a judgment debtor and a decree holder unless there is first a judgmentthat has been entered.

Having stated as above, I conclude that the purported actions by theApplicant to execute a non existent decree were null and void and the noticeto show cause and the several warrants of arrest issued thereafter were allunprocedural and consequently any warrant of arrest as against the affectedparty that may be in force is hereby cancelled. This would have beensufficient to dispose of this application but there is one more important issuethat was raised by the parties which requires to be commented on. Mr.Okari stated that for purpose of execution, the Town Clerk is the judgmentdebtor on behalf of the council and further stated that in recovering a debtfrom a local authority, the only mode of executing a decree is by arrestingthe Town Clerk. He cited the provisions of Section 263A of the LocalGovernment Act and Section XXI Rule 36(b) of the Civil Procedure Ruleswhich provides as follows:-

"Where a decree is for the payment of money, the decree-holder mayapply to the court for an order that -

(a).....

(b) in the case of a corporation, any officer thereof; or

(c)......

be orally examined as to whether any or what debts are owing to thejudgment-debtor, and whether the judgment-debtor has any and whatproperty or means of satisfying the decree, and the court may make an

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order for the attendance and examination of such judgment debtor orofficer, or other person, and for the production of any books ordocuments:"

I do not think whether any of the above provisions can be of any help in avalid application to commit a Town Clerk of a local authority to civil jail onaccount of the authority's failure to settle a decretal sum. Section 263Awould apply where there is a judgment or an order capable of execution. Inthe present case there is none. Even where there is a judgment, Section263 A merely states that the Clerk of the local authority shall, without delay,cause to be paid out of the revenue of the local authority such amounts asmay be payable under the judgment. It does not state what ought to be donein the event of any default. Suppose there are several judgments against alocal authority and other liabilities which by far exceed the revenue of theauthority, does it mean that the Town Clerk would be arrested and becommitted to civil jail for failing to pay the decretal sum or sums? I do notthink so. The Town Clerk is not the debtor, it is the local authority. Even inthe case of an individual judgment-debtor who has been taken to court undera warrant of arrest with a view to committing him to civil jail, the court hasto examine him and fully comply with the provisions of Order 35 CivilProcedure Rules before committing him to civil jail.

In the present case, the affected party, the Town Clerk, cannot personally beheld liable for the debt of the Respondent and it would be wrong in law toarrest and haul him to prison for the Respondent's inability to settle its-financial liabilities unless there is a mandamus order lawfully issued by thiscourt compelling him specifically to cause to be paid out of the revenue of the Respondent any sum in question and he deliberately refuses, fails and/orneglects to do so.

The end result is that the application is allowed with costs to the affectedparty.

DATED, signed and delivered at Nakuru this 16th day of January, 2004.

DANIEL K. MUSINGAAG.

JUDGE

16/1/2004