[2022] KEHC 14845 (KLR)

JWM & another (Both suing as the personal representative of the Estate of ENW (Deceased)) v County Government of Nairobi (Judicial Review Application E015 of 2022) [2022] KEHC 14845 (KLR) (Judicial Review) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14845 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E015 of 2022

AK Ndung'u, J

November 3, 2022

Between

JWM

1st Applicant

JMM

2nd Applicant

Both suing as the personal representative of the Estate of ENW (Deceased)

and

County Government of Nairobi

Respondent

Judgment

1. Pursuant to leave of court granted on February 28, 2022, the applicants filed a notice of motion dated March 10, 2022, seeking the following reliefs:i.Thatan order of mandamus be and is hereby issued to compel the County Government of Nairobi to pay the applicants, the decretal sum together with interest (assessed as at May 22, 2022) thereon of Kshs 1,550,000 comply with the judgment and decree issued on May 22, 2020 by Hon L. T Lewa (Ms) Senior Resident Magistrate in civil case number 2025 of 2019. ii.Thatan order of mandamus be and is hereby issued to compel the respondent to pay the applicants, the taxed costs together with interest thereon of Kshs 203,505 which is due to date on account of the certificate of taxation dated March 25, 2021 in Milimani Magistrate in civil case number 2025 of 2019. iii.ThatThe respondent be and is hereby ordered to comply by satisfying the decree, costs and interest in Milimani Magistrate in civil case number 2025 of 20i9 within fourteen (14) days from the date of service of the order of mandamus.iv.Thatin default of compliance, a notice to show cause do issue against the County Secretary and the Chief Officer in the Ministry of Finance on behalf of the respondent to show cause why they should not be cited for contempt of court.v.Thatthe costs of this cause assessed by the honourable court and borne by the respondent and paid together with the decretal sum.vi.Thatany other order that this honourable court will be pleased to issue in the circumstances.vii.Thatcosts be in cause.

2. The application was supported by a supporting affidavit dated March 10, 2022, and a further affidavit dated June 3, 2022 both jointly sworn by JWM and JMM, a statutory statement dated February 23, 2022, and a verifying affidavit dated February 23, 2022.

3. The application was based on the grounds that the applicants are the legal representatives of the estate of ENW (Deceased) pursuant to letters of administration ad litem under Murang'a succession cause number 840 of 2018; and that with thead litem issued, the applicants filed Milimani civil suit number 2025 of 2019 seeking an order for general damages, special damages, interests, and costs of the suit. That judgment was issued on May 22, 2020 by Hon. L.T Lewi (Ms) Senior Resident Magistrate in civil case number 2025 of 2019 where the respondent was to pay a decretal sum and costs of the suit. That the costs of the suit in Milimani Magistrate civil case number 2025 of 2019 were assessed at Kshs 203,505vide certificate of taxation dated March 25, 2021.

4. That the decree was served upon the respondent on March 24, 2021 and several letters of reminder were served upon the respondent and they have failed to comply with the same. Also, that it is in the interest of justice for this honourable court to issue an order of mandamus to enable the applicants realize their well-deserved right to access justice.

5. In a further affidavit dated June 3, 2022, the deponents - JWM and JMM - contended that through their advocates on record, they served the County Attorney of the county government of Nairobi with letters dated June 17, 2021 and December 14, 2021 respectively, which were received and stamped; and also served the same County Attorney with the relevant decree.

6. In opposing the application, the respondent filed their replying affidavit dated May 13, 2022 sworn by Sylvia Adhiambo Okech. The respondent averred that the service against the County Government of Nairobi bypassed the mandatory provisions of section 21 of the Government Proceedings Act thereby rendering the proceedings under order 53 of the Civil Procedure Rules lacking in merit, irregular and illegal.

7. Also, that the applicants have invoked judicial review proceedings irregularly and prematurely. Consequently, that the respondent seeks to strike out the notice of motion dated March 10, 2022. Therefore, that the applicants' application is misconceived and an abuse of the process - as it falls short of the benchmarks for the grant of an order of mandamus.

8. The application was canvased by way of written submission.

9. The applicants submitted on whether the order of mandamus is warranted, and who to bear the cost of this suit. It was the applicants’ assertion that they have invoked article 47 of the Constitution and section 4(1) of the Fair Administration Actions Act, and that the respondent's refusal to pay the decretal sum after being served with the decree since March, 2021, a period of 12 months, cannot reasonably be said to be an expeditious administrative action as envisaged in the aforesaid provisions of law.

10. The applicants submitted that mandamus is a prerogative order issued to compel the performance of a duty. That the principle of judicial review is concerned not with the private rights or the merits of the decision being challenged but with the decision-making process. Its purpose is to ensure that an individual is given fair treatment by an authority to which he has been subjected. Also, that judicial review proceedings, are neither criminal nor civil in nature in the strict sense. The case of Shah v Attorney General (No3) Kampala HCIC No 31 of 1969 [1970] EA 543; RepublicvKenya National Examination Counsel ex parte Gathenji &others, (1997) eKLR; Commissioner of Land v Kunste Hotel Ltd [1995­1998] IEA 1 (CAK), and Jotham Mulati Welamondi v The Electoral Commission of Kenya [2002] 1 KLR 4 were relied on.

11. The applicants conceded that before an order ofmandamus is issued, the elaborate procedure provided for under section 21 of the Government Proceedings Act, cap 40 of the Laws of Kenya and order 29 of the Civil Procedure Rules must be strictly complied with.

12. The applicants posited that the judgment was issued on May 22, 2020 by Hon L.T Lewa (Ms) Senior Resident Magistrate in civil case number 2025 of 2019 where the respondent was to pay a decretal sum. That the decree was served upon the respondent on March 24, 2021 and despite service, the respondent has failed to comply with the decree orders.

13. That the applicants, through their advocates on record, have been making constant follow ups and reminders to the respondent without success as ascertained vide letters dated March 24, 2021, May 24, 2021, June 17, 2021, August 10, 2021, October 12, 2021, December 14, 2021 and January 19, 2022. That the respondent acknowledged receipt by stamping on the said letters, specifically the dated June 17, 2021, and December 14, 2021.

14. The applicants maintain that despite service of the decree, the certificate of costs, and the certificate of order on the respondents, the latter has failed and/or neglected to pay the decretal sum together with the costs. Notably, that as the government's property is protected from execution proceedings, theex-parte applicant's only remedy is by way of an order of mandamus to compel the respondent herein to make good the decretal amount. Reliance is placed on the case of R v A.G & anotherex-parteJames Alfred Koroso Nairobi HC JR Misc Appl No 44 of 2012

15. The applicants contended that they have met the threshold and test for granting of mandamus. That the test for mandamus is set out in Alpotex Inc, v Canada (Attorney General), and, was also discussed in Dragan v Canada (Minister of Citizenship and Immigration). The eight factors that must be present for the writ to issue are:i.There must be a public legal duty to act;ii.The duty must be owed to the applicants;iii.There must be a clear right to the performance of that duty, meaning that: (a) The applicants have satisfied all conditions precedent; and (b) There must have been: (i). A prior demand for performance; (ii) A reasonable time to comply with the demand, unless there was outright refusal; and (iii) An express refusal, or an implied refusal through unreasonable delay;iv.No other adequate remedy is available to the applicants;v.The order sought must be of some practical value or effect;vi.There is no equitable bar to the relief sought;vii.On a balance of convenience,mandamus should lie.

16. On the subject of cost of this suit, the applicants submitted that section 27 of the Civil Procedure Act guides the court as to costs. Costs follow the event, and that in this case the applicants having proven their claim against the respondent they are entitled to have the costs of the case. Relied on the case of John Kiragu Kimani v Rural Electrification Authority [2018] eKLR.

17. Additionally, the applicants filed their supplementary submissions dated June 3, 2022. They identified the issue for determination as whether the application by the ex-parte applicants seeking orders of mandamus against the respondent offends section 21 of the Government Proceedings Act cap 40, and Laws of Kenya.

18. The respondent asserted that the applicants have abided by section 21 of the Government Proceedings Act because there is no dispute that there are in existence the certificates required by section 21 (1) of the Government Proceedings Act, and the same in addition to the decree and the certificate of taxation, were served, on various occasions upon the respondent, as well as the County Attorney of Nairobi.

19. Also, that under the Office of the County Attorney Act, section 7 provides for the functions, while section 8 provides for the powers of the County Attorney, in Kenya. Consequently, that the office of the County Attorney is now fully equipped to deal with all legal matters affecting county governments.

20. That though the Government Proceedings Act does not specifically recognize counties as Governments, it is now conceded that Kenya has two levels of governments at the National level and County Governments level. Reliance was placed on the caseRepublic v AIG and another exparte Stephen Wanyee Roki (2016) eKLR, wherein the court considered the applicability of the Government Proceedings Act

21. Further that the County Attorney of Nairobi was served with letters dated June 17, 2021 and December 14, 2021 and they acknowledged receipt by stamping on the said letters. The County Attorney was also served with the decree stamped on June 17, 2021.

22. The applicants’ position was that the respondent is not above the law and should obey court orders, failure to which they should be compelled to do so. That article 48 of the Constitution mandates the State to ensure access to justice to all persons and finally that the decree holder has the right to enjoy the fruits of his judgment and the same should not be thwarted. Reliance was placed on the case ofRepublic v Town Clerk of Webuye County Council & another HCCC 448 of 2006.

23. The applicant, in sum, contended that they have met the requirements of section 21 of the Government Proceedings Act, and is consistent with order 29 of the Civil Procedure Rules 2010.

24. In opposing the instant application, the respondents filed their written submissions dated May 16, 2022. They submitted that the application offends section 21 of the Government Proceedings Act chapter 40 Laws of Kenya and that the same is inconsistent with order 29 of the Civil Procedure Rules 2010. The respondents further asserted that these proceedings are special in nature, and are more so procedural in nature, and as such the applicants have failed to fulfil the requirements of section 21 of the Government Proceedings Act.

25. The respondent posited that the execution of decrees against the government is not undertaken as in ordinary civil cases, but must be in accordance with the Government Proceedings Act. That, though the Government Proceedings Act does not explicitly recognize counties as governments, it is now conceded that Kenya has two (2) levels of government as the national level and county level. Thus, that Government Proceedings Act applies to execution of decrees against the County Government. Reliance was placed on Republic v AG & another ex parte Stephen Wanyee Roki (2016) eKLR case.

26. It is trite law that before an order of mandamus is issued, an applicant must abide by the procedure in section 21 of Government Proceedings Act and order 29 Civil Procedure Rules. That the procedures therein must be strictly followed/complied with. The cases of Kisya Investments Ltd v AG(2005) 1 KLR 74, and Permanent Secretary Office of the President, Ministry of Internal Security &another ex parte Nassir Iwandihi(2014) eKLR were relied upon.

27. It was the respondents submissions that a mere service of a decree to any government office does not suffice to proper service on its construction. That it is the applicants' duty to be prudent with service. That in the instant case, the applicants have not demonstrated that the decree against the respondent has been procedurally served, as required in law; and thus that the judicial review application seeking for an order of mandamus before this court is premature and irregular. Therefore, that the respondent is not compelled to perform its duty and pay the applicants accordingly. Consequently, that the notice of motion dated March 10, 2022 be struck out.

28. On considering the materials on record and the party’s arguments, the following issues for determination arise:i.Whether the applicants have met the threshold for the grant of the judicial review order of mandamussought.ii.Who bears the costs of the application?

29. It is settled law that before an order of mandamus is issued, an applicant must abide by the procedure in section 21 of Government Proceedings Act which provides:“(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.”

30. Section 21 (3) of the said Act on the other hand provides:“If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the accounting officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:“Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.”

31. The circumstances under which judicial review order of mandamus are issued were discussed in the case Republic v Kenya National Examinations Council Ex Parte Gathenji & 8 others civil appeal No 234 of 1996, where the Court of Appeal cited with approval, Halsbury’s Law of England, 4th Edition Vol 7 p 111 para 89 thus:“The order of mandamus is of most extensive remedial nature and is in form, of 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."...These principles mean that an order of mandamus compels 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.”

32. Turning back to the instant case, the applicant has moved this court to compel the satisfaction of a judgment already decreed in its favour by a competent court of law.

33. From the record filed in the court, there is no evidence that certificate of order against the Government was obtained and/or served on the respondent. The service proved is of the decree and letters and it is evident that the letters were duly stamped as received as by the County Secretary of the 1st respondent.

34. From the foregoing, it is clear that the applicant did not comply with section 21 of Government Proceedings Act for failure to obtain and serve a certificate of order against the Government to the respondent. In the premises, the applicant has not made a case for the grant of an order of mandamus and I hereby decline to grant the same in terms of prayers sought.

35. Consequently, the notice of motion dated March 10, 2022 is hereby struck out. The applicant shall be at liberty to file a fresh application in compliance with the law. Each party to bear its own cost of this application.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF NOVEMBER 2022. .............................A.K. NDUNGUJUDGE