[2023] KEHC 25986 (KLR)

Republic v Attorney General; Kenya Joinery Limited (Exparte) (Application E007 of 2023) [2023] KEHC 25986 (KLR) (Judicial Review) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 25986 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E007 of 2023

J Ngaah, J

December 1, 2023

Between

Republic

Applicant

and

Attorney General

Respondent

and

Kenya Joinery Limited

Exparte

Judgment

1. The applicant’s application is a motion dated 31 January 2023 expressed to be brought under Article 48 of the Constitution, section 21 (2) of the Government Proceedings Act, cap. 40 and Order 53 rule 1, 2 and 4 of the Civil Procedure Rules. It seeks an order of mandamus against the Attorney General and the prayer for the order is expressed as follows:“a)An order of mandamus to direct and compel the Attorney General for himself and in conjunction with the accounting officers of the Ministry of Lands and Physical Planning and Chief Land Registrar, to satisfy the Certificate of Order against the Government issued on 22nd December 2022 in enforcement and satisfaction of the decree of court, issued in Environment & Land Court Constitutional Petition No. 14 of 2019; Kenya Joinery Limited versus The Ministry of Lands & Physical Planning & 4 Others, within 7 days of judgment and order herein.”

2. The applicant has also sought an order on costs.

3. The application is based on the statutory ground dated 25 January 2023 and an affidavit verifying the facts relied upon sworn on even date by Subodha Patel, the applicant’s managing director.

4. According to Patel, his company obtained a judgment in a case in the Environment and Land Court, being Environment & Land Court Constitutional Petition No. 14 of 2019; Kenya Joinery Limited versus The Ministry of Lands & Physical Planning & 4 Others. The judgment was rendered on 29 June 2022.

5. According to this judgment, the applicant was awarded Kshs. 900, 000,000/= together with interest at court rates from the time of filing of suit. The applicant was also awarded costs of the suit.

6. By a certificate of order against government issued on 22 November 2022, the Deputy Registrar of the Environment and Land Court certified the amount payable to the applicant to be Kshs. 1,296,000,000. 00 accruing interest until payment in full.

7. On 6 January 2023, the applicant demanded payment of the amount from the Attorney General in accordance with the provisions of section 21 (2) of the Government Proceedings Act.

8. The Attorney General is said to have neglected or failed to make the payment or make any proposals for settlement of the certificate of order against government, hence the instant application.

9. Ms. Anne M. Ndundu, the learned state counsel in the office of the Attorney General filed a replying affidavit opposing the application.

10. Ms. Ndundu has admitted that indeed the applicant obtained judgment against the Ministry of Lands and Physical Planning in terms alluded to by the applicant.

11. However, the Attorney General filed an appeal, in the Court of Appeal, against the decision of the Environment and Land Court. Together with the appeal, the Attorney General also filed an application for stay of execution of the judgment. This was filed in civil application no. 326 of 2022.

12. When the application came up for hearing on 21 November 2022, a compromise was reached between the parties to the effect that:“i.The status quo regarding the suit property in this matter shall be maintained pending hearing and determination of the intended appeal.ii.the intended appeal to be filed and served within thirty days from the date hereof, and thereafter be set down for hearing on priority basis.iii.the application dated 8th September, 2022, is hereby marked as compromised on the aforesaid terms and conditions.”

13. The substantive appeal was subsequently filed and served upon the applicant. As at the time of swearing the replying affidavit, the Court of Appeal had issued directions on the hearing of the Appeal.

14. These facts, according to Ndundu, ought to have been disclosed to the Honourable Court and the fact that they were not so disclosed, the applicant is guilty of material nondisclosure and, therefore, not entitled to the order sought.

15. The submissions by the learned counsel for the applicant and the respondent, more or less, reiterated the depositions in the affidavits filed in support of their respective client’s cases.

16. One thing that stands out on the face of the application is that the Attorney General has been named as the respondent and, therefore, the target of the order of mandamus. That he is the target of the order is also apparent from paragraphs 6,7,8 and 9 of the affidavit verifying the facts relied upon. In these paragraphs Patel has sworn as follows:“6. On the basis of the said certificate of order against the Government, on 6th January 2023, the applicant issued demand to the Honourable Attorney General, the respondent, under the provisions of the law, section 21 (2) of the Government Proceedings Act (Chapter 40 of the laws of Kenya).7. However, in egregious breach of the obligation, the respondent has neglected and or failed to make payments and or to issue proposals for settlement of the certificate of order against the Government, thereby necessitating this application.8. The applicant, the decree holder has been unable to execute and realize a court decree. This application is the only remaining and known means for ensuring the respondent performs that which he is obligated to do, which would in turn ensure that the applicant enjoys the fruits of its judgment guaranteed by the Constitution.9. The application therefore seeks leave to apply for the order of mandamus, to compel the respondent, to perform his functions under section 21 (3) of the Government Proceedings Act.”

17. The context in which the Attorney General has been named as the respondent and, therefore, the target of the order of mandamus sought ostensibly to compel him to settle a decretal sum due to the applicant runs contra to the provisions of section 21 of the Government Proceedings Act. Under this provision, in particular section 21(3), the obligation to pay is on the accounting officer of the relevant Government ministry or department. This section reads as follows:21. 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.

18. It is apparent from section 21(2) the certificate of order against government may only be served upon the Attorney General but under section 21(3) the obligation to pay and settle the amount specified in the certificate of order against government is upon the accounting officer of the government department concerned.

19. It follows that if the obligation to pay is on the accounting officer, then the right party to be named in proceedings such as these is the accounting officer and not the Attorney General.

20. According to section 21(3), the accounting officer is the person upon whom the public duty to pay has been bestowed and, therefore, he is the proper person against whom the order of mandamus would be directed in the event of failure to perform the public duty. It is also the accounting officer, and not the Attorney General, who would be subjected to contempt of court proceedings in the event of the order of mandamus is granted and not complied with.

21. I am minded that in the prayer for the order for mandamus, the applicant has lumped together the Attorney General and “the accounting officers of the Ministry of Lands and Physical Planning and Chief Land Registrar” as the people who ought to be compelled by way of the order of mandamus to make the payment. By this very fact, the “accounting officers” ought to have been named as respondents.

22. For the reasons I have given, I am not satisfied that the applicant’s application is competent. In my humble view, it is fatally defective and is, therefore, dismissed. I make no order as to costs considering that the decretal sum is yet to be settled.

SIGNED, DATED AND DELIVERED ON 1 DECEMBER 2023NGAAH JAIRUSJUDGE