[2022] KEHC 18096 (KLR)

Republic v Cabinet Secretary Ministry of Defence; Odiaga (Exparte) (Application 63 of 2015) [2022] KEHC 18096 (KLR) (Judicial Review) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 18096 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application 63 of 2015

J Ngaah, J

October 6, 2022

Between

Republic

Applicant

and

Cabinet Secretary Ministry Of Defence

Respondent

and

Sylvanus Otieno Odiaga

Exparte

Ruling

1. The application before court is an amended motion dated 24 April 2021. The primary prayer in the motion is that “the ex parte applicant is entitled to the accrued interest on the decretal sum”. The motion is stated to be brought under sections 1A, 1B, 3 and 3A of the Civil Procedure Act cap 21 and order 51 of the Civil Procedure Rules.

2. According to the applicant’s affidavit sworn in support of the application a “consent agreement” apparently between the applicant and the respondent was executed on 17 March 2019 to the effect that interest on the decretal sum and costs totalling Kshs. 5, 335,550/= would be waived if this sum was paid to the applicant by 30 June 2019.

3. The sum of Kshs. 5, 335,550/= was eventually paid but outside the agreed timelines. It is for this reason that the applicant is now seeking for the order that he is entitled to payment of the interest.

4. The application was opposed and a replying affidavit to this end was sworn by Dr Ibrahim M. Mohammed, the Principal Secretary, Ministry of Defence.

5. Dr. Ibrahim concedes that indeed parties agreed that the interest would be waived and only the decretal sum and costs would be paid. However, the delay in payment of this sum was occasioned by delays in the correspondences on this particular issue between the National Treasury, the office of the Attorney General and the respondent. He also adds that there was inadequate budgetary support from the Exchequer and when the funds were eventually remitted to the parent ministry, the agreed time within which the decree holder was to be paid had lapsed.

6. So, while Dr. Ibrahim admits that the payment was delayed, the delay was occasioned by circumstances beyond his control and for this reason, he deposes that he should not be punished for a mistake that was not of his own making.

7. I have gone through the entire court file but I have not been able to find the agreement allegedly entered on 17 March 2019. It has not been exhibited to the affidavit in support of the application. Neither is there indication from the record that a consent order was ever recorded on the payment of the decretal sum and, if so, it was extracted.

8. In the absence of this agreement, there is no material before court upon which it can decide on the import, tenor, and the illegal consequences, if any, of the alleged agreement.

9. The court cannot tell, for example, whether it was expressly provided in the alleged agreement, that interest will become due in default of payment within the agreed timelines. And even assuming this was the case, this application would be unnecessary for the simple reason that the agreement or order would speak for itself. In other words, it would be unnecessary for this court to make any other order on whether the applicant is entitled to interest or not if the consent order provided for the payment of interest.

10. For these reasons, I hold that the applicant’s application is not only misconceived but it is also inadequate in its vital elements which, in this case, would include the facts upon which it is based. It is an application that is misconceived and an abuse of the process of this Honourable Court. The application is hereby dismissed but I make no order as to costs. It is so ordered.

SIGNED, DATED AND DELIVERED ON 6 OCTOBER 2022NGAAH JAIRUSJUDGE