[2023] KEHC 25172 (KLR)

Onyango t/a SM Onyango & Associates Advocates v County Secretary County Government of Kisumu & another (Judicial Review Application E012 of 2023) [2023] KEHC 25172 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25172 (KLR)

Republic of Kenya

In the High Court at Kisumu

Judicial Review Application E012 of 2023

MS Shariff, J

November 10, 2023

Between

Samuel Michael Onyango T/A SM Onyango & Associates Advocates

Applicant

and

County Secretary County Government Of Kisumu

1st Respondent

County Executive Member In Charge Finance, Kisumu County

2nd Respondent

Ruling

1. Vide a notice of motion dated 15th March, 2023 supported by the affidavit of Samwel Michael Onyango of even date and brought under the provisions of Order 53 Rules 3, 4 and 5 of the Civil Procedure Rules and Sections 8 and 11 of the Law Reform Act the Applicant sought the following orders:-a.Spentb.Spentc.That the Applicant be hereby granted an order of Mandamus that compels the Respondents herein namely the County Secretary, Kisumu and the Chief Officer Finance, Kisumu County to jointly and severally proceed and pay out the decretal sum of Kshs.1,825,903. 80 being thr taxed costs in terms of the decree against the Government issued on 12th October, 2022 in Kisumu High Court Miscellaneous Civil Application No. E081 of 2021: Samuel Michael Onyango t/a S. M. Onyango & Associates Advocates –vs- County Government of Kisumu and the Chief Executive Officer - Finance.d)That the sum of Kshs.1,825,903. 80 and interest be deposited in the account of S. M. Onyango Advocates ECO Bank A/c. No. 6616000034 without demur.e)That cost of this application be provided for.

2. This application was resisted by the Respondents who filed grounds of opposition dated 25th April, 2023 and a notice of preliminary objection of even date.

3. The application was canvassed by way of written submissions. The rival submissions of parties have been considered.

Analysis and determination 4. The issues that emerge for determination are as follows:-i)Whether the Applicant has made out a case for grant of the judicial review orders of Mandamus against the Respondent?ii)Whether the Applicant’s application contravenes the provisions of Section 21 (4) of the government Proceedings Act (2012)?

5. This court will address the Respondent’s preliminary objection first. It is the Respondents’ case that the Applicant’s application is vitiated by noncompliance with the provisions of Section 21 of the Government Proceedings Act (2012) which provides as follows:-“Satisfaction of orders against the Government(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.

6. The Applicant has sued the County Secretary Kisumu County and the County Executive Committee Member in charge of Finance pursuant to the provisions of Section 44 of the County Government Act and Section 103 of the Public Finance Management Act respectively.

7. On 14th March, 2023 the Applicant herein obtained leave to file this application and it is its case that it duly served the County Government of Kisumu with a certificate of costs, decree, an application of execution and a notice to show cause. A copy of an affidavit of service of one Stephanie Akinyi sworn on unknown date is annexed to the supporting affidavit of Samwel Michael Onyango as annexure SMO-6 to support the Applicant’s said position.

8. This court has perused the said affidavit of service and has noted that the said process server deposed that she had been instructed to serve a notice to show cause upon the Respondents and that on 19th October, 2022 she visited the Attorney General Chambers situated at Provincial Headquarters Kisumu whereat she found one Ann, a secretary who accepted service and stamped the notice to show cause. The said notice to show cause was not annexed. There is no proof that a certificate of order or decree was served upon the authorized officer as required under the provisions of Section 21(4) of the Government Proceedings Act wherefore I do find that the Applicant has failed to comply with the mandatory statutory provisions relating to execution against the Government.

9. In light of the above finding, the Respondents preliminary objection is hereby upheld and Applicant’s application herein is thus struck out for want of compliance with Section 21(4) of the Government Proceedings Act.

10. Each party shall bear its own costs.

DELIVERED, SIGNED AND DATED AT KISUMU THIS 10TH DAY OF NOVEMBER, 2023. MWANAISHA S. SHARIFFJUDGE