[2022] KEHC 10204 (KLR)

Professional Marketing Services Ltd v Principal Secretary, Ministry of Information, Communications & Technology (Judicial Review Miscellaneous Application E104 of 2021) [2022] KEHC 10204 (KLR) (Judicial Review) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10204 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E104 of 2021

AK Ndung'u, J

July 14, 2022

Between

Professional Marketing Services Ltd

Applicant

and

Principal Secretary, Ministry of Information, Communications & Technology

Respondent

Judgment

1. The Notice of Motion before court is datedOctober 10, 2021. It seeks orders:a)That an Order of Mandamus do issue directing the Respondents to pay the Applicant the sum of Kshs. 17,342,2259. 13 being the decretal sum in Milimani Commercial Civil Suit Number, 9598 of 2019; Professional Marketing Services Limited Vs. Ministry of Information Communications and Technology pursuant to judgment entered on November 6, 2020together with interest thereon at court rates from April 20, 2021until payment in full.b)That the costs of this Application be borne by the Respondents.

2. It is premised on the Statutory Statement of Joanne Mwangi and her Verifying Affidavit sworn on July 7, 2021.

3. The gist of the application is that vide a judgment entered in CMCC 9598 of 2019; Professional Marketing Services Ltd vs. The Office of the Attorney General and the Ministry of Information Communications and Technology, a sum of Ksh. 17,343,259. 13 was decreed payable to the Applicant.

4. A Certificate of Order against the Government has been obtained and served. The same is exhibited.

5. Despite the service of the Certificate of Order against the Government for Ksh. 17,342,259. 13, the Respondents have failed to pay the decretal sum.

6. The Respondents and specifically the 1st Respondent have failed to comply with the provisions of the Government Proceedings Act, specifically S21(3).

7. It is urged that an order of Mandamus be issued directing the Respondents to pay to the Applicant the sum of Ksh. 17,342,259. 13 together with interest thereon at court rates from April 20, 2021 until payment in full.

8. Despite evidence of proper service, there was no response filed to the application.

9. Section 21 of the Government Proceedings Act provides for execution proceedings against the Government. Under section 21(2) requires a decree holder against the Government to obtain a certificate of order against the Government and once served, Section 21(3) of the Act provides that the Accounting officer of the particular government ministry or department shall settle the amount in the decree. Unlike execution proceedings against other parties in suits including corporate bodies, no execution or attachment process can issue against the Government.

10. Section 21 (4) of the Government Proceedings Acts prohibits execution against the Government. It states: -“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.”

11. As stated above, the procedure for enforcing decrees against the Government is set out in section 21 of the Act. As Githua J stated in Republic -Vs- Permanent Secretary Ministry of State for Provincial Administration and Internal Security and Another ex parte Fredrick Manoah Egunza [2012] eKLR:“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…….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 Honourable 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 Honourable Attorney General, Section 21 (3) imposes a statutory duty on the accounting officer to pay the sums specified in the said order to the person entitled or to his advocate……”

12. In the present case, the applicant has complied with the statutory requirement. The Certificate of order against the Government has been obtained and served. The Accounting officer concerned has not settled the amount due. There is no explanation why the decree has not been settled. The Applicant has no other means of enforcing the decree. An order of mandamus is apt in the circumstances to compel the accounting officer to perform his statutory duty. In Republic –Vs- Kenya National Examinations Council exparte Gathenji & Others [1996] eKLR Civil Appeal No. 266 of 1996, the Court of Appeal stated:“The order of mandamus is of a 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…… 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 which has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed” (See also Republic –Vs- Town Clerk, City Council of Nairobi (Supra).”

13. In the premises, the Application herein is merited and orders prayed for, deserved. I allow the same and make the following orders; -1. An order of Mandamus do issue directing the respondents to pay to the Applicant the sum of Ksh. 17,342,259. 13 being the decretal sum in Milimani CMCC Number 9598 of 2019; Professional Marketing Services Limited vs Ministry of Information And Technology pursuant to judgement entered on November 6, 2020 together with interest thereon at court rates from April 20, 2021 until payment in full.2. The Respondents to bear the costs of this Application.

DATED, SIGNED AND DELIVERED THIS 14TH DAY OF JULY 2022A.K. NDUNGUJUDGE