[2024] KEHC 3265 (KLR)

Kungu v County Government of Nairobi (Judicial Review Miscellaneous Application E034 of 2023) [2024] KEHC 3265 (KLR) (Judicial Review) (3 April 2024) (Ruling)

Neutral citation: [2024] KEHC 3265 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E034 of 2023

JM Chigiti, J

April 3, 2024

Between

Francis Mwaura Kungu

Applicant

and

The County Government of Nairobi

Respondent

Ruling

1. Before this court is the Notice of Motion application dated 19th October, 2023; brought under order 53 rule 3 of the Civil Procedure Rules, 2010, Section 8 (2) of the Law Reform Act, Cap 26. The Applicant is seeking for the following orders:1. That an Order of Mandamus do issue compelling the Respondent to pay the Ex parte Applicant the sum of Kes. 2,025,800. 00, with interest at court rates from 13th November, 2009 until payment is made in full together with costs taxed at Kes. 266,643. 30, on account of Judgment dated 15th February, 2016 and delivered on 17th March, 2016 in Nairobi Environment and Land Court Case Number 700 of 2007: Francis Mwaura Kungu v Bernard Muceke and Nairobi City Council.2. That costs of this application be borne by the Respondent.

2. The Application is based on the grounds on the face of it; on the Statutory Statement, and a Verifying Affidavit.

3. It is the Applicant’s case that by a judgment dated 15th February, 2016 and delivered on 17th March, 2016 in Nairobi Environment and Land Court Case Number 700 of 2007: Francis Mwaura Kungu v Bernard Muceke and Nairobi City Council he [Applicant] was awarded the total sum of Kes. 2,025,850. 00 with interest at Court rates from 13th November, 2009 until payment is made in full. Also, by a Ruling dated 17th May, 2021 the Applicant was awarded costs of the suit together with interest, which were taxed at Kes. 266,643. 30.

4. The Applicant contends that he has served the notice prescribed under Section 21 of the Government Proceedings Act, made follow ups but the Respondent has refused to settle the decretal sums for over 8 years now.

5. As per the Applicant, by dint of Section 33 of the sixth schedule to the Constitution of Kenya 2010 the Respondent is the successor of the defunct City Council of Nairobi, thus bears the obligation to settle the decretal sum.

6. Conversely, the Respondent opposed the Application mainly on two (2) points ‑ through a Replying Affidavit dated 6th December, 2023 sworn by Abdi Asha, the Chief Officer Finance of Nairobi City County.

7. Firstly, the deponent maintained that they [Respondent] have never been properly served by the Applicant in order to satisfy the decree. In particular, that the Applicant failed to follow the prescribed procedure under Section 21 of the Government Proceedings Act, Cap 40, Laws of Kenya.

8. Secondly, that the Respondent is limited by legislation, among them the Public Finance Management Act, as far as county expenditure is concerned thus cannot commit funds to settling the decretal sum unless the same is budgeted for and approved by the County Assembly.

9. Consequently, as per the Applicant no order against them [Respondent] may issue in enforcement of payment of the decree, and no person should be held personally liable based on the decree whereas the Applicant has not complied with the provisions of Government Proceedings Act, and Public Finance Management Act.

10. To buttress their cases, the Applicant filed his written submissions dated 7th February, 2024; while the Respondents written submissions are dated 15th February, 2024.

11. Counsel for the Applicant submitted that they served a statutory notice to the Respondent as prescribed under Section 21 (1) of the Government Proceedings Act. To demonstrate the service, the Applicant attached an annexure marked FMK 6 and which document is dated 2nd February, 2023.

12. Further, it was argued that this court in its ruling dated 3rd October, 2023 had made a finding that the certificate prescribed under Section 21(2) of the Government Proceedings Act had already been duly served.

13. Additionally, that the Respondent’s argument that the decretal sums have not been budgeted for, nor approved for payment by County Assembly cannot not hold water; as settlement of decree is not subject to budgetary allocations.

14. Reliance was placed on the cases of Hardi Enterprises Limited v County Secretary. Nairobi City County Government & 2 others (Judicial Review Miscellaneous Application E0l5 of 2023) [2023] KEHC 27072(KLR) (Judicial Review) (20 December 2023) (Judgment); and Republic v County Secretary, Nairobi City County & another: Tom Ojienda & Associates (Ex-parte) (Judicial Review E109& of 2020) [2023] KEHC 23737 (KLR) (Judicial Review) (13th October 2023) (Judgment).

15. On their part, the Respondent’s counsel in his submissions maintained that the Applicant did not serve the [Respondent] with the requisite statutory notice as prescribed under Section 21(1) of the Government Proceedings Act. That what was served was a letter to the County executive in charge of finance demanding for the satisfaction of the decree dated 5th October, 2022.

16. It is conceded that this court had made a finding that a certificate had been served; however, the Respondent affirms that it is only a letter that was served to them.

17. In particular, that the Applicant missed a crucial step in executing against the Government as he [Applicant] has neither obtained nor served a certificate of satisfaction of order against the Government, nor a separate certificate of cost against the government as required under section 21 of the Government Proceedings Act. The case of Jamleck Waweru Karanja V County Government of Nakuru (2020) eKLR was relied upon.

18. Further, that as per Section 125 of the Public Finance Management Act payments of the decretal sums would only be subject to budgetary process for the county government; and that in this case the Respondent has not refused to pay but is seeking time to complete the budgeting.

19. After a careful consideration of the Application, the responses thereto, the annexures, and the learned counsel’s submissions; the following issues arises for consideration: Whether the orders of mandamus should issue as prayed by the Applicant.

20. 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.” (Emphasis added).

21. 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.”

22. 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.”

23. In the instant case, the Applicant has moved this Court to compel the satisfaction of a judgment already decreed in its favor by a competent Court of law.

24. From the record filed in the court, there is no evidence that a Certificate of Order against the Government was obtained or served to the Respondent. I have examined what the Applicant has contended as a statutory notice, under Section 21 of the Government Proceedings Act, the document is dated 2nd February, 2023 and marked FMK 6. It is reproduced as below:“…County Executive In-Charge of FinanceCounty Government of Nairobi4th Floor, Nairobi City HallBox 30075 -00100Nairobi.Dear Sir,RE: Nairobi Environment And Land Court Case Number 700 of 2007: Francis Mwaura Kungu v Bernard Muceke And Nairobi City County - Demand For Satisfaction Of The Decree Dated 5Th October 2022Our Client: Francis Mwaura KunguWe refer to the above court matter together with the Decree arising therefrom dated 5/10/2022. A copy of the said Decree is enclosed herewith for your ease of reference.Our client, Francis Mwaura Kungu, has graciously granted the County enough time to satisfy the full decretal sum of K.Shs. 2,025,800. 00, with interest at Court rates from 13/11/2009 until payment is made in full, plus costs taxed on 17/05/2022 at K.Shs. 266,643. 30. Our instructions are to demand payment from the County of the full decretal sum and costs, as set out in the foregoing, within the next thirty (3O DAYS from the date of this letter. Failure to adhere to this demand will invite our client to file appropriate judicial proceedings against the County Government for failure to make good the payment of the decretal amount at the County's Cost.This notice is issued in compliance with Section 21(2) of Government Proceedings Act.By a copy of this letter your advocates are also duly notified of this Demand.Yours faithfully… ”

25. From the foregoing, it is clear that the Applicant did not comply with Section 21 of Government Proceedings Act for failure to obtain a Certificate of Order against the Government and/or a Certificate of Cost against the Government, and serve the Respondent. The Certificate of Order against the Government and/or a Certificate of Cost against the Government is issued by the relevant court officer, and is in a prescribed manner.

26. Nevertheless, the Respondent’s argument that they are unable to pay as a result of lack of a budgetary allocation has no place in Judicial review cases and I dismiss that argument. This court is guided by the case of Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka [2019] eKLR where Odunga J. in his ruling of 12th February, 2018 extensively dealt with the defence as follows:“As regards lack of budgetary allocation, Githua, J in Republic v. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR expressed herself as follows:“In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon Attorney General, Section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues.” [Emphasis added].

Disposition: 27. The Applicant has not made a case for the grant of an order of mandamus, and I hereby decline to grant the same.

Order:The Application dated 19th October, 2023 is dismissed with costs.It is so ordered.

DATED, SIGNED, AND DELIVERED AT NAIROBI ON 3RDAPRIL, 2024. CHIGITI J (SC)JUDGE