[2023] KEELRC 1913 (KLR)

Nthiga v County Government of Embu & another (Employment and Labour Relations Petition 15 of 2017) [2023] KEELRC 1913 (KLR) (1 August 2023) (Ruling)

Neutral citation: [2023] KEELRC 1913 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nyeri

Employment and Labour Relations Petition 15 of 2017

ON Makau, J

August 1, 2023

Between

Thomas Mugambi Nthiga

Petitioner

and

County Government of Embu

1st Respondent

County Public Service Board Embu

2nd Respondent

Ruling

1. Before the Court is the Respondents/Applicants’ Notice of Motion Application dated December 9, 2022 brought under sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 22 Rule 22 and Order 50 Rule 1 of the Civil Procedure Rules. It seeks the following orders that:-a.This Honourable Court be pleased to issue orders setting aside and/or lifting the execution and the entire order issued on November 23, 2022 committing the 1st Applicant’s County Secretary one Johnson Ngao Nyaga to civil jail and all consequential orders issued therein.b.This Honourable Court be pleased to allow the Applicant to settle the Decretal sum by way of installments.c.The cost of this Application be provided for.

2. The Application is supported by an affidavit sworn by the said Johnson Ngao Nyaga, on December 9, 2022 in which he deposed that the court entered an ex partejudgement against the County Government of Embu on February 24, 2020 for the sum of Kshs 2,790,753 together with interest; that the failure to defend the suit was due a mistake on the part of their counsel BM Musyoki & Co Advocates; that the petitioner executed the said judgment by taking out a Notice to Show Cause (NTSC) dated November 9, 2022, against him in his position as the County Secretary of the County Government; that the NTSC came up for hearing on 23 November 2022 when he missed court and warrants of arrest were issued against him; that his failure to attend court was because he was not served with the NTSCor a hearing notice; and that the County Government is willing to settle the entire decretal sum although not immediately due to the financial constraints faced by the County Government.

3. The Respondent opposed the Application vide his Replying Affidavit sworn on December 16, 2022 in which he deposed that the judgement herein was not entered ex parte as the Respondents duly participated in the proceedings; that the Applicant has not settled the decretal sum despite having been aware of the same for 3 years; that it is clear that they have no intention of settling it; that the Applicants have not put forward cogent reasons to warrant the issuance of the orders sought; that the warrants of arrest were issued regularly and lawfully; and that the respondents were duly served with the NTSCas per the affidavit of service filed but failed to attend court. Consequently, the petitioner prayed for the Application to be struck out and execution of the judgement be allowed to proceed.

Submissions 4. The Applicants submitted the issue whether the warrants of arrest issued against on November 23, 2022 should be lifted and the applicants allowed to settle the decretal sum by way of installments. In support of his contention, it was admitted that the County Government is aware the judgement entered against it herein and it is willing to settle the decretal sum; and that it is not able to pay the whole amount at once and therefore it undertakes to have the same settled by way of installments to be completed on September 30, 2023.

5. Reliance was placed on Order 21 Rule 12 (1 &2) of the Civil Procedure Rulesto persuade the Court to grant its prayer. Further reliance was placed on the case ofHildegard Ndalut Ksv Lalkina Dairies Limited and Another[2005] eKLR where the Court held that a judgement debtor has to show seriousness in paying the decretal amount by showing his bona fides by arranging fair payment proposals to liquidate the amount.

6. It was submitted that although warrants of arrest is one of the modes of execution of decrees, the warrants of arrest ought to be lifted and other modes of execution be used. The provision of Article 11 of theInternational Convention on Civil and Political Rightswhich bars imprisonment on grounds of inability to fulfil a contractual obligation, was cited to urge that the issuance of warrants of arrest in this case against the applicants was unlawful.

7. On the other hand, it was submitted for the petitioner that the Applicant has not produced any evidence to prove that the County Government is facing financial constraints and as such the application should be dismissed. It was further submitted that the Applicant had no excuse to ignore the matter and keep blaming its previous advocates yet a case belongs to a litigant and not the Advocate. For emphasis reference was made to the case onNeeta Gohil Ksv Fidelity Commercial Bank Limited [2019] eKLR where it was held that;“… it is not enough for a party to simply blame an advocate for a mistake but the party must show tangible steps taken by him in following up his matter.”

8. The court was urged to dismiss the Application because it offends the Oxygen principle as set out under sections 1A and 1b of the Civil Procedure Rules and also because the Applicant did not present any tangible or sufficient reasons to warrant this Court to disturb the order made on 23 November 2022.

Issues for determination and analysis 9. Having considered the application, affidavits and the submissions, the main issues for determination are: -a.Whether the court should set aside the order of the Court made on 23rd November 2022 committing the 1st applicant’s County Secretary, one Johnson Ngao Nyagah to civil jail and all the consequential orders issued thereunder.b.Whether leave should issue to the applicants to settle the decretal sum by way of instalments.

Setting aside order for committal to civil jail. 10. The answer to the first question for determination depends on whether execution by committal of the 1st respondent’s County Secretary was the proper mode of executing the judgment herein. Execution of judgements against government entities is done in accordance with the procedure provided for under Section 21 of the Government Proceedings Act which provides as follows:(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.(2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.(3)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.(4)Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, 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.(5)This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.”

11. From the foregoing, it is clear that for any person who wishes to execute a decree against government must obtain and serve the advocate for the County Government and the entity with a Certificate of Order in the prescribed format and where costs have been granted in the suit, a Certificate of Taxation. The Procedure for application for a Certificate of Order is laid out under Order 29 rule 3 as herein follows:“3. Any application for a certificate under section 21 of the Government Proceedings Act (which relates to satisfaction of orders against the Government) shall be made to a registrar or, in the case of a subordinate court, to the court; and any application under that section for a direction that a separate certificate be issued with respect to costs ordered to be paid to the applicant shall be made to the court and may be made ex parte without a summons, and such certificate shall be in one of Form Nos. 22 and 23 of Appendix A with such variations as circumstances may require.”

12. Having considered of the material placed before this Court, it is clear that the procedure of executing a decree and certificate of costs set out under section 21 above was not complied with. After obtaining the decree and the certificate of costs, the petitioner sought to execute the same by way of arrest and committal to civil jail, officers of the applicants herein. The officers were served with NTSCand they appeared before the Deputy Registrar of court through their counsel on October 12, 2021. The matter was back to the Deputy Registrar on November 23, 2022 when the impugned orders, namely Warrants of Arrest were issued against the 1st respondent’s County Secretary.

13. The procedure of obtaining warrants of arrest and committing to civil jail of a public officer due to a debt owed by the government is alien to the Government Proceeding Act and the Rules thereunder. Such procedure of execution of decree is only provided for under the Civil Procedure Rules to apply to private individuals. Section 21(4) of the Government Proceedings Act clearly indicates that no officer of the government shall be held individually liable under any order to enforce payment by the government. By issuing the warrants of arrest in this case, the Deputy Registrar held the Applicant’s County Secretary individually liable for the debts of the County Government contrary to the law.

14. The only instance when a party can go for public officer is when Judicial Review proceedings are instituted against the Accounting Officer who fails to make payment after being served with the decree of the Court and a Certificate of Order as provided under Section 21(4) of the Government Proceedings Act. In such circumstances, the aggrieved party can apply for an order of Mandamus in accordance with Order 53 of the Civil Procedure Rules, to compel the Accounting Officer of the entity to make good the decree of the court.

15. I gather support from High Court Judicial Review Miscellaneous Application No. 44 of 2012 between the Republic v The Attorney General & Another ex parte James Alfred Korosowhere Odunga J expressed himself as follows:“…In the present case the ex parte applicant has no other option of realizing the fruits of his judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that he has been awarded is realized…”

16. I gather more support from the case of Maggy Agulo Construction Co Ltd v Ministry of Public Health & 4 others [2020] eKLR where the Court held as follows:“19. An execution process against the government or its officials which sidesteps section 21 of the Government Proceedings Act and Order 53 of the Civil Procedure Rules is deficient, irregular and illegal, and cannot stand. Consequently, the mode of execution, by way of warrant of arrest of an official of the 3rd defendant that was ordered in this case was irregular and contrary to the Government Proceedings Act. There is, therefore, merit in the application dated 17th February 2020, and the same ought to be allowed as prayed.”

17. From the foregoing analysis, it is quite evident that the petitioner misled the Deputy Registrar into issuing warrants of arrest prematurely against a public officer, who is not even the accounting officer of the applicants herein. Consequently, the order of the Deputy Registrar made on November 23, 2022 by which warrants of arrest were issued against one Johnson Ngao Nyagah, is hereby set aside as prayed.

Leave to settle the decretal sum by instalments 18. As regards the settlement of the decree by instalments, the applicants indicated there willingness to clear the whole decretal sum by September 30, 2023. The said undertaking was made in December 2022 when the applicants were filing the application. Since then, Kshs 1000,000 has been paid. The applicants had sufficient time to raise the balance of the decretal sum. Consequently, I grant leave to the applicants to settle the outstanding decretal sum by two equal instalments as follows:a.First instalment, to be paid on or before August 31, 2023. b.Last instalment, to be paid on or before September 30, 2023

19. In the end, I allow the applicants’ Notice of Motion dated December 9, 2022 as prayed, subject to the directions given for settlement of the decretal sum by two instalments. Since the applicants are to blame for the instant proceedings, by delaying settlement of a court decree, I deny them costs of the application.

DATED, SIGNED AND DELIVERED AT NYERI THIS 1ST DAY OF AUGUST, 2023. ONESMUS N MAKAUJUDGEORDERIn view of the declaration of measures restricting court operations due to the Covid-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15thApril 2020, this ruling has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.ONESMUS N. MAKAUJUDGE