[2022] KEHC 15171 (KLR)

Mwagambo & Okonjo Advocates v County Government of Kajiado & another (Judicial Review Application E008 of 2021) [2022] KEHC 15171 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 15171 (KLR)

Republic of Kenya

In the High Court at Kajiado

Judicial Review Application E008 of 2021

SN Mutuku, J

July 21, 2022

IN THE MATTER OF: ARTICLES 1(1) 2, 2(1)(2), 10(1)(B), 20(1),23(1), 27(1), 28,73, 156 and 165 OF THE CONSTITUTION OF KENYA, AND IN THE MATTER OF: SECTION 8 & 9 OF THE LAW REFORM ACT CHAPTER 9 LAWS OF KENYA. AND IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTIONS ACT, 2013 ADVOCATES CLIENT

Between

Mwagambo & Okonjo Advocates

Applicant

and

County Government of Kajiado

1st Respondent

Chief Finance Officer, County Government of Kajiado

2nd Respondent

Judgment

Introduction 1. The applicant offered legal services to the 1st respondent in Kajiado ELC No 11 of 2017, Gujral Singh v County Government of Kajiado; in Nairobi ELC No 401 of 2014 Kajiado Plot Owners v County Government of Kajiado and Nairobi ELRC No 492 of 2015 Sankaire Tima v County Government of Kajiado after conclusion of which the applicant filed bill of costs and certificates of taxation in each of the three matters. The bill of costs was taxed to a total of Kshs 4,128,359. 58. The 1st respondent has failed to settle this amount leading to these proceedings.

2. The applicant filed this notice of motion dated January 13, 2022 brought under order 53 rules 3 and 4 (1) of the Civil Procedure Rulesand sections 1A, 1B &3A of the Civil Procedure Act, Cap 21 and sections 8 & 9 of the Law Reform Act seeking the following orders:i.That this honourable court be pleased to grant orders of mandamus to compel the respondents to immediately pay the aggregate Kshs 4,128,359. 58 together with interest thereon from the various dates of taxation of the advocates-client bill of costs in respect of Kajiado ELC Miscellanous No 14 of 2018, Mwagambo & Okonjo Advocates -vs- County Government of Kajiado as taxed on July 16, 2018; Nairobi ELC Miscellaneous No 83 of 2016, Mwagambo & Okonjo Advocates -vs- County Government of Kajiado as taxed on March 20, 2018 and Nairobi ELC Miscellaneous 49 of 2020, Mwagambo & Okonjo Advocates -vs- County Government of Kajiado as taxed on May 25, 2021. .ii.That in default of payment of the aggregate amount as ordered by the honourable court, the court be pleased to mete out such punitive sanctions as shall be necessary to ensure adherence including but not limited to such fines or committal of the 2nd respondent to civil jail for contempt of court.iii.That the cost of the application be borne by the respondent.

3. The grounds in support of the application are found on the face of it and in the supporting affidavit sworn by Mr Emmanuel Mwagambo Mwagonah on January 13, 2022. He has deposed at the conclusion of the matters in which the applicant offered legal services to the 1st respondent the bill of costs was taxed as follows: Kajiado ELC 11 of 2017 taxed at Kshs 880,492. 88 on July 16, 2018; Nairobi ELC No 401 of 2014 taxed at Kshs 1,512,160. 50 on March 20, 2018 and Nairobi ELRC No 492 of 2015 taxed at 1,735,769. 20 on May 25, 2021.

4. The 1st respondent did not contest the taxed amounts necessitating requests for judgment. Judgment was entered against the 1st respondent for the taxed amount in the three matters. The 1st respondent did not settle the taxed amounts despite various emails and letters to it dated 12th September and October 29, 2021. The respondents’ inaction to the payment is not only contemptuous to court but also illegal, unprocedural and irrational as it frustrates the applicant’s rights to natural justice and procedural fairness.

5. Despite service, the respondent did not respond to this application. This court has confirmed from the affidavit of service dated June 6, 2022 and filed on the same date that the respondent was properly served.

6. When the matter came for hearing on June 20, 2016, the respondents did not appear though properly served. Counsel for the applicant made submissions in line with the pleadings, reiterating the contents of the notice of motion and supporting affidavit.

7. Counsel for the applicant argued that the applicant was seeking an order of mandamus directed at the chief finance officer of Kajiado County directing him to pay legal fees due to the applicant. He argued that although the certificates of taxation were forwarded to o the respondents, the amounts still remain unpaid and that the certificates have not been appealed against nor is there an order staying them.

Determination 8. I have considered the pleadings, the annexures thereto and oral submissions. The issue for determination is whether an order of mandamus should issue to compel the respondents to immediately pay the aggregate Kshs 4,128,359. 58 together with interest thereon from the various dates of taxation of the advocates-client bill of costs.

9. In Republic vs Kenya National Examinations Council ex parte Gathenji & 8 Others, Civil Appeal No 234 of 1996, the court cited, with approval, the Halsbury’s Laws of England, 4thEdition vol 7 p 111 paragraph 89 that: -'The order of mandamus is of most extensive remedial nature and is in form, 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.' (emphasis added).

10. I have seen the annexed certificates of taxation in respect of the three matters mentioned in these proceedings and two letters from the applicant addressed to the office of the County Attorney, Kajiado County dated September 16, 2021 and October 29, 2021 seeking settlement of the taxed amounts. I have also indicated above that the respondents did not defend this matter though duly served.

11. Kajiado County is one of the counties in Kenya established under article 6 of theConstitution and 1st schedule of theConstitution. Execution of decrees against a county government must be done in accordance with provisions of the Government Proceedings Act although that Act does not specifically recognize counties in the same level as the national government (see Republic v AG and another exparte Stephen Wanyee Roki (2016) eKLR).

12. I have read the provisions of section 21(4) of the Government Proceedings Act Cap 40 Laws of Kenya which provides as follows: -21. Satisfaction of orders against the government4. Save as provided in this section, no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the government of any money or costs, and no person shall be individually liable under any order for the payment by the government or any government department, or any officer of the government as such, of any money or costs.

13. In the same vein, order 29 rule 2 of the Civil Procedure Rules, 2010 does not allow orders against the government under, inter alia, order 22 (execution of decrees and orders). It is clear to me that the civil procedure rules, both under the Government Proceedings Act and the Civil Procedure Rules, do not envisage a situation where execution against the government can be carried out in the normal way executions against, say individual, is done for instance instructing auctioneers, etc. Law and procedure provide that the only way the applicant can get his judgment settled is by way of judicial review through judicial review proceedings.

14. To my mind, the applicant, whose advocate-client bill in the three matters was taxed as shown in this application, and judgment having been entered for the applicant in the amounts taxed and there being no order overturning or staying the decisions, then the applicant had no alternative than to invoke the jurisdiction of this court through judicial review proceedings to seek the order of mandamus to enforce their rights.

15. The judicial review remedies are discretionary in Re Bivac International SA (Bureau Veritas) (2005) EA 43 where the High Court expounded on the issue of discretion and stated that: -'Hereas judicial review remedies are at the end of the day discretionary, that discretion is a judicial discretion and, for this reason a court has to explain how the discretion, if any, was exercised so that all the parties are aware of the factors that led to the exercise of the court’s discretion. There should be an arguable case which without delving into the details could succeed and an arguable case is not ascertained by the court by tossing a coin or waxing a magic wand or raising a green flag, the ascertainment of an arguable case is an intellectual exercise in this fast growing area of the law and one has to consider without making any findings, the scope of the judicial review sought, the grounds and possible principles of administrative law involved.'

16. Being guided by the above decision, it is my view that this court ought to exercise its discretion in favour of the applicant who has satisfied this court that they deserve the order of mandamus that they seek in order to enforce their legal rights.

17. Consequently, I allow the notice of motion dated January 13, 2022 in the following terms:i.This honourable court does hereby grant an order of mandamus compelling the respondents to immediately pay the aggregate Kshs 4,128,359. 58 together with interest thereon from the various dates of taxation of the advocates-client bill of costs in respect of Kajiado ELC Miscellanous No 14 of 2018, Mwagambo & Okonjo Advocates -vs- County Government of Kajiado as taxed on July 16, 2018; Nairobi ELC Miscellaneous No 83 of 2016, Mwagambo & Okonjo Advocates -vs- County Government of Kajiado as taxed on March 20, 2018 and Nairobi ELC Miscellaneous 49 of 2020, Mwagambo & Okonjo Advocates -vs- County Government of Kajiado as taxed on May 25, 2021. ii.That in default of payment of the aggregate amount as ordered, this court upon being moved, be pleased to mete out such punitive sanctions as shall be necessary to ensure adherence including but not limited to such fines or committal of the 2nd respondent to civil jail for contempt of court.iii.Costs of this application be borne by the respondents.

18. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 21ST DAY OF JULY, 2022. S. N. MUTUKUJUDGE