[2019] KEHC 5820 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. 386 OF 2018

IN THE MATTER OF AN APPLICATION FOR ORDERS OF MANDAMUS

BETWEEN

REPUBLIC........................................................................................APPLICANT

VERSUS

BARINGO COUNTY GORVERNMENT..........................1ST RESPONDENT

THE COUNTY SECRETARY, BARINGO COUNTY.......2ND RESPONDENT

CHIEF OFFICER, FINANCE/COUNTY TREASURER

BARINGO COUNTY...........................................................3RD RESPONDENT

EX PARTE :

KTK ADVOCATES

JUDGMENT

The Application

1. The ex parte Applicants herein, KTK Advocates (hereinafter “the Applicants”), is a firm of Advocates who have filed these judicial review proceedings by way of a Notice of Motion dated 25th September 2018. The Applicants are seeking orders of mandamus against the 1st and 2nd Respondents herein, who are the County Secretary and Chief Officer Finance/ Country Treasurer in the Baringo County Government. The Applicants sought orders to compel the said Respondents to pay to them the sum of Kshs 17,550,907. 08 due to, and owing on account of a judgement dated 02. 11. 17 and decree dated 23. 11. 17 in Nairobi High Court Misc. Cause No. 1 of 2017, together with taxed costs and interest until payment in full.

2. The Applicants’ case is set out in their statement dated 17th September 2018, and a verifying affidavit sworn on the same date by Donald B. Kipkorir, an advocate in the Applicants’ firm. The Applicants aver that they represented and acted for the Respondents after receiving instructions in Nairobi Petition No. 113 of 2015, and judgment therein was given in the Respondents’ favour. That the Applicants subsequently submitted its fee note to the Respondents, which they neglected and refused to settle, prompting the Applicants to file a Bill of Costs for taxation in Nairobi HC Misc. Cause No 1 of 2017.

3. The Applicants further averred that the Bill of Costs was taxed on 08. 06. 17 in the sum of Kshs 17,570,907/=. That the Respondents, being aggrieved with the decision, filed a reference to the High Court dated 15. 06. 17, and the Applicants on their part filed an application seeking judgement in terms of the certificate of taxation. The applications were concurrently heard and that a judgement was delivered in the Applicants’ favour on 02. 11. 17 for the sum of Kshs 17,570,908. 08 as taxed by the taxing master, while the reference was dismissed.

4. The Applicants contended that the Respondent then again filed another application for stay of execution, which was dismissed on 24. 07. 18. They averred that they have since sent notices to the Respondents to settle the decretal sums, but there has been refusal to settle the amount. The Applicants claim is for the amount of Kshs 17,570,907. 08 until payment in full together with interest, and they contend that since the Respondent’s property are protected by law against execution, they have no other way to secure compliance of the decree apart from the orders sought herein. The Applicants annexed copies of the Certificate of Taxation and various rulings they relied upon, and of the letters sent to the Respondents to settle the amount owed.

The Response

5. The application was opposed by the Respondents through a replying affidavit sworn on 9th January 2019 by Francis Komen, the County Secretary. He contended that the Applicants had filed a similar application through Judicial Review no 687 of 2017, which was dismissed on among other grounds that it did not meet the requisite requirements. It is his case that they were willing to liquidate the decretal amount through instalment, and that they sought to be allowed to do the same in Miscellaneous Cause No 1 of 2017.

6. The deponent averred that the Baringo County Government runs on a programme based budget, with each department allocated funds with clear objectives. Therefore, that the decretal sum could therefore not be funded by the approved budget for the financial year 2018/2019 as it had not been factored in the allocation. Further, that the approved budget for legal fees was Kshs 3,992,384/=, but this could not satisfy the decretal sum together with other pending fees. In addition, that the allocation of funds within the County and its departments is done through the County Government Baringo Appropriation Act No 21 of 2018, and that one department cannot borrow from another vote head once the allocation has been approved. This would mean that the legal department cannot borrow funds from any other vote head within the County Government.

7. It was the Respondents’ case that before the allocation of funds they prepared budget estimates which was forwarded to the Assembly for approval, and the assembly approved Kshs 5,700,000/= for legal services for the financial year 2018/2019. That due to the insufficient allocation of funds they have been unable to meet the legal outstanding obligation which stands at Kshs 33,000,000/=.

8. The Respondents in conclusion stated that their prayers to liquidate the decretal amount by way of instalment werer dismissed on the 17th December 2018, and they have thus far deposited a sum of Kshs 3,000,000/=. They contend that they do not dispute the outstanding decretal sums and asked the Court to allow the application to pay the sums in instalments, to enable them meet their other financial obligations in the legal department.

The Determination

9. The application was canvassed by way of written submissions. The Applicants filed submissions dated 30th November 2018, while the Respondents failed to file any submissions, despite directions and the opportunity to do so having been given to them. Before proceedings with a consideration of the substantive issues raised by the Applicants, I need to first address the contention made by the Respondents that the present application is res judicata,which if established will render it unnecessary to consider any other issue presented by the application.

10. The Applicants submitted in this regard that the undisputed fact is that the Bill of Costs was allowed in the sum of Kshs 17,570,907. 08, and that the Respondents have admitted liability. Further, that the Respondents application to pay the decretal sums by way of instalments has been heard and determined on merits. On the issue of res judicata, the Applicants placed reliance on the Court of Appeal case of William Korross (Legal Personal Representative of Elijah C.A Koross) vs Hezekiah Kiptoo Komen & 4 Others, (2015) e KLR, and John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport And Infrastructure & 3 Others (2015) eKLR for the holding that the doctrine of res judicata, which means literally and simply “ the case is decided”, is embodied in section 7 of the Civil Procedure Act in peremptory exclusionary terms; and that the rationale behind the doctrine is based on the public interest that there should be an end to litigation, coupled with the interest to protect a party from facing repetitive litigation over the same matter.

11. The Applicants further relied on the case of Kamunye & others v Pioneer General Assurance Society Ltd (1971) E.A 263 for the proposition that res judicata is essentially a bar to subsequent proceedings involving issues that have been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives. The Applicants also submitted at great length as to this Court should grant them orders of mandamus, while citing various authorities. In closing they submitted that the Respondents’ response is made in bad faith, has no merit and is calculated to delay the Applicants from enjoying the fruits of a judgment.

12. I have considered the Applicants’ arguments, and note that the Respondents exhibited a judgment delivered by Mativo J. on 24th July 2018 in Judicial Review Application No. 687 of 2017- R vs Baringo County Government, the County Secretary, Baringo County & The Chief Officer/County Treasurer, Baringo, ex parte KTK Advocates,which was attached as “Annexure FK1” to their replying affidavit. It notable that the Applicants did not dispute the averments made by the Respondents as regards the previous orders made by Mativo J. In a similar application they had made in the said suit, and did not address this allegations in their submissions.

13. Section 7 of the Civil Procedure Act in this regard provides for the circumstances when a suit is res judicata as follows:

“ No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

14. The test to be applied to determine whether a suit is res judicata was set in Uhuru Highway Development Limited v Central Bank of Kenya & 2 Others[1996] eKLR, by the Court of Appeal as follows:

(i) [There must be] a previous suit in which the matter was in issue;

(ii) the parties were the same or litigating under the same title;

(iii) a competent Court heard the matter in issue;

(iv) the issue has been raised once again in a fresh suit.

15. I have perused the judgment in Judicial Review Application No. 687 of 2017- R vs Baringo County Government, the County Secretary, Baringo County & The Chief Officer/County Treasurer, Baringo, ex parte KTK Advocates as “Annexure FK1” to their replying affidavit. The parties in the said suit are the same parties in the present suit, and the same order of mandamus was sought by the Applicants herein in the said suit. The Applicants however in addition also sought orders for a Notice to Show Cause to issue against the Respondents for committal to civil jail for contempt in the said suit.

16. The learned Judge in his judgment dismissed the said application for among other reasons, that the fact that there was still active litigation over the decree. The Judge also held that the Applicant had not satisfied the requirements as regards issuance of reasonable notice for compliance, and had not established refusal and unreasonable delay to pay the decree on the part of the Respondents, and therefore that there was no basis for the grant of mandamus.

17. The instant application is thus clearly res judicata, as the orders sought herein were sought and substantially considered and denied in Judicial Review Application No. 687 of 2017. This application is to this extent also in abuse of the process of Court and incompetent, as it seeking this Court to sit in judgment over a court of competent jurisdiction. The Applicants ought to have sought a review of the orders in Judicial Review Application No. 687 of 2017, if they were of the opinion that there were changed circumstances or new evidence which entitled them to the order of mandamus.

18. The Court of Appeal inJohn Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 others(supra)observed as follows in this regard:

“The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of Court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent Courts. It promotes confidence in the Courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.”

19. In the premises, I find that the Applicant’s Notice of Motion dated 5th November 2018 is not merited, and is accordingly struck out with costs to the Respondents.

20. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 26TH DAY OF JUNE 2019

P. NYAMWEYA

JUDGE