[2017] KEHC 9778 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CIVIL DIVISION

HIGH COURT MISC. APPLICATION NO. 6 OF 2017

DEROS CONTRUCTION COMPANY LIMITED………………...APPLICANT

VERSUS

THE SECRETARY COUNTY GOVERNMENT OF VIHIGA....RESPONDENT

R U L I N G

Introduction

1. On the 16. 05. 2016, Hon. Lady Justice Njoki Mwangi heard an application dated 16. 11. 2015 filed in Misc. Application No. 89 of 2015. Deros Construction Company Ltd – vrs – The Secretary County Government of Vihiga. The Hon. Njoki Mwangi J issued the following orders;-

“(1. ) Orders of mandamus are issued compelling the Secretary County Government of Vihiga to pay the applicant the decretal sum awarded in Kakamega High Court Civil case No. 25 of 2007 on the 22nd day of September, 2008, amounting to Khs.5,996,229. 40 interest inclusive.

(2) The Secretary County Government of Vihiga is ordered to deposit Kshs. 5,996,229. 40 in the client account of Momanyi, Manyoni & Company Advocates at Equatorial Commercial Bank Kakamega Branch Account No. [particulars withheld]for onward transmission to the applicant

(3) The applicant is granted costs of the application”

2. From the subsequent events, it is clear the above stated orders were not complied with, hence the instant application.

The Application

3. The application coming up is the Notice of Motion dated 01. 03. 2017 brought pursuant to the provisions of Section 3A of the Civil Procedure Act, Cap 21 of the Laws of Kenya. The applicant, Deros Construction Company Limited, seeks orders;-

(1. ) That the Honourable Court be pleased to grant leave to the applicant to cite the respondent, Linet Abdalla, County Secretary Vihiga County, for contempt of court orders.

(2. ) That the Honourable Court be pleased to punish the Respondent, Linet Abdalla in her capacity as the County Secretary, Vihiga County for disobeying the court orders served upon her office on the 10th day of June, 2016 in respect of Kakamega High Court Misc. Application No.89 of 2015.

(3. ) That the costs of this application be provided for.

4. The application is premised on 7 grounds that are set out on the face thereof, the gist of which is that having been duly served with the court orders on 10th day of June, 2016, the respondent has disobeyed those orders with impunity despite several reminders to her to pay the amounts ordered by the court. That the respondent’s conduct is clearly contemptious of the court for which she ought to be punished.

5. The application is also premised on the supporting affidavit sworn by Timothy Owase Tabuke on 01. 03. 2016. The deponent asks the court to commit the respondent to civil jail for blatant disobedience of the court orders.

Response to the Application

6. The Respondent filed an affidavit dated 02. 05. 2017 in response to the Notice to show cause. The affidavit was filed in court on the same day. The deponent acknowledges the issuance of the orders of mandamus but states therein that the mechanism for payment of the applicant’s debt is yet to be established. She depones that upon expiry of the term in office of the Transition Authority which had been established to deal with issues of transfer of assests and liabilities emerging from the defunct Local Authorities to the County Government which included but was not limited to conducting an audit and verification of assets and liabilities of the defunct Local Authorities with a view to developing mechanisms for implementation of the transfer of the said assets and liabilities. There is now no structure within which the payment sought can be made. What the respondent is in effect saying is that while the applicant’s debt is acknowledged (and in fact included among the liabilities to be transferred to the county Government of Vihiga.) the time is not ripe for payment because of the legal technicalities still daunting the County Government. Further that given the statutory process required to actualize the above, the Vihiga County Government did not budget for the liability due to the applicant and that such payment can only be made when there is a budgetary allocation that has been approved by the County Assembly. The Respondent prays that enforcement of the decree do await the outcome of the ongoing statutory audit and verification of assets and liabilities.

The Submissions

7. The application was canvassed by way of written submissions. The applicant’s submissions are dated 09. 10. 2017 and were filed on 10. 10. 2017, while the Respondent’s submissions are dated 11. 10. 2017 and filed in court on 12. 10. 2017. The applicant submits that the respondent has, at every stage of the execution process placed stumbling blocks, thus making it difficult for the applicant to reap the fruits of his lawfully obtained judgment. Counsel also submits that the authorities relied upon by the respondent were in respect of cases where the respondent raised the issue of transitional provisions before the Honourable Court issued orders of mandamus. He contends that the respondent who had the opportunity to raise the issue at the opportune time threw away that opportunity by making no responses to the various applications filed by the applicant, including the application for orders of mandamus.

8. The respondent’s submissions are anchored in the provisions of section 30 of the Contempt of Court Act and Section 21 of the Government proceedings Act. Section 30 of the Contempt of Court Act Provides thus;-

“ 30 where a state organ, government department ministry or corporation is guilty of contempt of court in respect of any undertaking given to a court, by the state organ, government department, ministry or corporation, the court shall serve a notice of not less than thirty days on the accounting officer, requiring the accounting officer to show cause why contempt of court proceedings should not be commenced against the accounting officer.”

9. Counsel submits that since the above provision of the law was not adhered to the instant application is premature and should be struck out.

10. Section 21 of the Government Proceedings Act gives the procedure to be followed by the court issuing the orders for payment and by the person in whose favour such order is made against the government or against the Government Department. The procedure involve the issuance of a certificate and service of that certificate, showing the amount payable and the accounting Officer for the government department concerned. The respondent submits this procedure was also not followed in the instant case.

11. Reliance has been placed on the Court of Appeal decision, Civil Appeal No. 14 of 2015 – The (interim) county Secretary County of Kakamega – Vs – Ali Adam and Mumia Razaf Chitechi (unreported). I have carefullyread through the decision by Murgor JA dated 31. 03. 2017. comments on the same appear in the paragraphs that follow

Analysis and Determination

12. From the above analysis of the pleadings the submissions and the law, the issue that arises for determination is whether the instant application is premature. There is no doubt in this case that the debt due to the applicant is owed and admitted. The only point raised by the respondent is that the hands of the County Government of Vihiga are tied until an audit of the assets and liabilities is completed, and secondly that the proper procedure under the Contempt of Court Act and the Government Proceedings Act were not followed in commencing these proceedings.

13. In light of the law, I do find and hold that the instant application is premature. The debt in this case was incurred before the promulgation of the Constitution 2010. Before the commencement of the Constitution, matters of the local authorities were conducted under the umbrella of the Local Government Act but Article 176 of the Constitution 2010 establishes County Government for each of the 47 counties, consisting of a county assembly and a county executive. As Murgor JA says in her judgment, the County Government was

“a newly created tier of self –government, with a different structure and orientation from the defunct Local Authorities. Without any express provision to designate them as legal successors of the defunct local authorities, it cannot be inferred that County Governments should be included within the definition of Legal successors as provided by Section 33”

14. In the context of the matter in controversy in this application, recourse has to be had to the Section 15 of the Sixth Schedule to the Constitution which makes provision for devolution of functions to be made by an Act of Parliament and in particular Section 15(2)(b) thereof which provides that the legislation to be passed by Parliament shall “establish criteria that must be met before particular functions are devolved to County Governments to ensure that those governments are not given functions which they cannot perform.” It was this provision that gave birth to the Transition to Devolved Governments Act, 2012 and under Section 1 thereof, the transition Authority was established. The Transition Authority, under Section 7(3) of the Act was charged with the responsibility of preparing and validating an inventory of all the existing assets and liabilities of government, other public entities and local authorities. In particular, the Transition Authority was to “audit assets and liabilities of local authorities, to establish the assets, debts and liabilities of each local authority …..and provide a mechanism that will secure assets and liabilities held by local authorities” It has been submitted on behalf of the respondent that the life of the Transition Authority came to an end before it had completed its mandate but that there is now in place a new entity known as the Intergovernmental Relations Technical Committee which is undertaking the audit and verification of the assets and liabilities of the defunct local authorities with a view to enabling County Governments to meet their obligations under a new statutory order.

15. From the above, I am satisfied that the respondent is not in a position to pay the amounts due until the audit and verification process is complete. In this regard therefore, the instant application is premature. This position was also captured by the court in the case of Republic – vs – County Secretary Muranga County Government, Exparte Thiga Thiuta [2014] eKLRwhere Ngaah J expressed himself thus;-

“With the emergence of the County Governments, the assets and pre-existing liabilities of the now defunct local authorities was to be shared between those county governments and the national government. The body that was to work out how this distribution was to be done was the Transition Authority which was created under Section 4 of the Transition to Devolved Government’s Act. Among its functions set out in Section 7 of the Act, the Transition Authority is required to prepare an inventory of all existing assets and liabilities of the government, other public entities and local authorities. Once this is done it is upon the Transition Authority to come up with the criteria to determine the transfer of the previously shared assets, liabilities of the government and the local authorities.”

16. The above case, together with the court’s decision in the Busia High Court case of County Government of Busia & another – vs – Julius Orina Manwari & 12 others [2015] eKLR were quoted with approval by Murgor JA in her judgment referred to hereinabove.

17. I entirely agree with the judgment of Murgor JA and with the observations by JJ Ngaah and Tuiyot which, to a very large extent formed the basis of the judgment by Murgor JA. In this regard, I do find and hold that the applicant’s application is premature.

18. The second reason why I find the applicant’s application premature is the fact that the relevant provisions of Section 30(1) of the contempt of Court Act and Section 21 of the Government Proceedings Act were not complied with. I note from the record that attempts were indeed made by the applicant to comply with those provisions, but the same was not done to the letter of the said provisions. Infact, there are no annextures to the application depicting copies of the notice issued by the court under Section 30(1) of the Contempt of Court Act or Section 21 of the Government proceedings Act. The only logical inference to be drawn from the lack of copies of the said documents is that there was no compliance on the part of the applicant.

Conclusion

19. The above being the case, I have no option but to strike out the applicant’s Notice of Motion dated 01. 03. 2017. The applicant is at liberty to file another application or other applications in strict compliance with the law.

20. Each party in this matter shall bear its own costs.

Orders accordingly

Ruling delivered, dated and signed in open court at Kakamega this 7th day of December, 2017

RUTH N. SITATI

JUDGE

In the presence of;-

Mr. Manyoni (present)……………….. ………….for Applicant

……M/S Amasakha & Co. (absent)……………………for Respondent

………Polycap…………….……………………………...Court Assistant