[2022] KEHC 16367 (KLR)

Republic v Chief Magistrate’s Court Isiolo; Edin t/a Rayan Provision Store & 2 others (Interested Parties); County Government of Isiolo & another (Applicant) (Judicial Review 7A of 2022) [2022] KEHC 16367 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16367 (KLR)

Republic of Kenya

In the High Court at Meru

Judicial Review 7A of 2022

EM Muriithi, J

December 15, 2022

(Formerly Nairobi JR Application No. E099 of 2022) IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDER OF CERTIORARI TO QUASH WARRANTS OF ARREST ISSUED BY THE CHIEF MAGISTRATES COURT AT ISIOLO AND IN THE MATTER OF WARRANTS OF ARREST ISSUED IN ISIOLO CMCC NO. 26 OF 2017, 28 OF 2017, 29 OF 2017, 30 OF 2017, 31 OF 2017, 34 OF 2017, 35 OF 2017 AND 36 OF 2017 AND IN THE MATTER OF SECTION 21 OF THE GOVERNMENT PROCEEDINGS ACT AND IN THE MATTER OF SECTION 9(1) OF THE FAIR ADMINSTRATIVE ACTION ACT

Between

Republic

Applicant

and

Chief Magistrate’s Court Isiolo

Respondent

and

Adan Hassan Edin t/a Rayan Provision Store

Interested Party

and

County Government of Isiolo

Applicant

and

Dabasiti Contractors & Suppliers Limited

Interested Party

Ali Hussein Ali t/a Al Majid Shop

Interested Party

and

Peter Muhuha Ngechu

Applicant

Judgment

1. By an application dated 15/8/2022 pursuant to Article 47 of the Constitution, sections 7, 8 and 9 of the Fair Administrative Action Act, sections 1A, 1B, 3A of the Civil Procedure Act, Order 53 Rules 1, 2, 3, 4 of the Civil Procedure Rules, section 8(2) of the Law Reform Act and all other enabling provisions of the law, the Applicants seek:1. That an order of certiorari do issue quashing the decision of the Respondent made on or about March 24, 2022 to issue warrants of arrest against Peter Ngechu, Chief Officer for Finance, County Government of Isiolo, in Isiolo CMCC No 29 of 2017-Adan Hassan Edin T/A Rayan Provision Stores v County Government of Isiolo, Isiolo CMCC No 30 of 2017-Adan Hassan Edin T/A Rayan Provision Stores v County Government of Isiolo, Isiolo CMCC No 34 of 2017-Ali Hussein Ali T/A Al Majid Shop v County Government of Isiolo, Isiolo CMCC No 35 of 2017-Ali Hussein Ali T/A Al Majid Shop v County Government of Isiolo and Isiolo CMCC No 36 of 2017-Ali Hussein Ali T/A Al Majid Shop v County Government of Isiolo.2. That an order of prohibition do issue directed to the Respondent prohibiting issuance of warrants of arrest against any officer of the County Government of Isiolo, the 2nd applicant in respect of Isiolo CMCC No 29 of 2017-Adan Hassan Edin T/A Rayan Provision Stores v County Government of Isiolo, Isiolo CMCC No 30 of 2017-Adan Hassan Edin T/A Rayan Provision Stores v County Government of Isiolo, Isiolo CMCC No 34 of 2017-Ali Hussein Ali T/A Al Majid Shop v County Government of Isiolo, Isiolo CMCC No 35 of 2017-Ali Hussein Ali T/A Al Majid Shop v County Government of Isiolo and Isiolo CMCC No 36 of 2017-Ali Hussein Ali T/A Al Majid Shop v County Government of Isiolo.3. That costs be provided for.

2. The facts of the application are supported by the statement and verifying affidavit of Peter Muhuha Ngechu, the 1st applicant herein, sworn on 25/7/2022. He avers that in 2017, the interested parties and others filed various suits at the Chief Magistrates Court at Isiolo against the 2nd applicant, and obtained a judgment in their favour and the respective decrees issued and signed by the respondent. By a consent letter dated 13/8/2019, the parties consented to the payment of the total sum of Ksh 163,377,754 being the full and final settlement of the decrees in Isiolo CMCC Nos 26/17, 27/17, 28/17, 29/17, 30/17, 31/17, 32/17, 34/17, 35/17 and 36/17.

3. It is averred that the 2nd applicant has paid a cumulative sum of Ksh 165,330,448, which is already in excess of what was recorded in the consent, receipt of which was acknowledged by the interested parties in writing.

4. The above notwithstanding, the interested parties obtained fresh warrants of arrest in March 2022 against the 1st applicant, in Isiolo CMCC Nos 29/17, 30/17, 34/17, 35/17 and 36/17, purportedly in enforcement of further interest not contained in the consent letter totaling to Ksh 10,674,068.

5. The lower court was moved on 19/4/2022 by Messrs Sam Ogola & Co Advocates challenging the purported claim for further interest above, where the court stayed execution pending the hearing and determination of the said application.

6. The discovery of the fact that Messrs Sam Ogola & Co Advocates were not properly on record in the matter led to the withdrawal of the said application, and a subsequent application dated 30/5/2022 was filed by Messrs Philip Henry Associates seeking to regularize the record and reinstate the orders sought in the earlier application by Messrs Sam Ogola & Co Advocates. The court regularized the record by consent of the parties but declined to extend the interim orders despite a clear merit in the circumstances to do so.

7. The applicants believe that according to the provisions of section 21 of the Government Proceedings Act, a warrant of arrest cannot issue against an officer of the Government in the circumstances suggesting that the officer bears personal responsibility for contractual obligations owed by the government. He terms the lower court’s refusal to grant interim orders staying execution of the warrants in order to preserve the subject matter of the application as malicious, unjustified, illegal, an abuse of judicial discretion and an unfair administrative action. He avers that there has been unusual, intensified and sustained pressure upon the OCS Isiolo Police Station to execute the warrants of arrest, in order to coerce the applicants to illegally pay out colossal public funds to totally undeserving entities.

8. The interested parties opposed the application by the replying affidavit sworn by Ali Hussein Ali, the 3rd interested party, on October 19, 2022. He avers that prior to the consent of 24/8/2019, warrants had been issued against the 1st applicant, Mohamud Abdullahi Haji and Ahmed Galgalo Guyo. Instead of abiding by the consent and defraying the 1st installment of 80 million on the date agreed, the applicants, in blatant and rudimental breach of the consent, transcended all the way past that time, hence the accrual of interest on the decretal sum owing to the delay in settlement as covenanted in the consent. The applicants’ default in payments of the 2 installments necessitated the interested parties to take out fresh warrants which included interest. He accuses the applicants of abusing the court process by rushing to this court yet their 2 applications dated 30/5/2022 and 20/7/2022 are pending directions before the lower court. He further accuses the applicants of filing a flurry of applications in the lower court and obtaining ex parte stay orders, which the interested parties sought to be vacated. In his view, this judicial review application is a backdoor method of setting aside the consent dated December 15, 2019, which ought to be dismissed with costs. In any event, the interest parties were not effecting arrest of the 1st applicant in his personal capacity but rather in his capacity as the chief finance Isiolo County Governent.

9. The Attorney General on behalf of the respondent filed grounds opposition dated November 14, 2022 that;“The order of certiorari would not be the most efficacious remedy in the circumstances as the applicants have a remedy in a civil claim; Further the civil claim would be the appropriate remedy as a challenge grounded on illegality requires evidence to be adduced, particulars to be provided and the requisite standard of proof discharges; The notice of motion herein is incompetent, frivolous and an abuse of court process and should be dismissed with costs.”

10. The court on November 16, 2022 heard oral submissions from counsels for the parties herein. The applicants and the interested parties further filed lists of authorities on November 16, 2022 and October 24, 2022 respectively.

Analysis and Determination 11. The High Court derives its jurisdiction to hear and determine judicial review cases from Article 165(6) and (7) of the Constitution which provides that:“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi- judicial function, but not over a superior court. For the purposes of clauses (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”

12. In order to succeed in an application for judicial review, the applicants have to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. The Court of Appeal in Municipal Council of Mombasa v Republic & Another [2002] eKLR expressed itself as follows:“The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself - such as whether there was sufficient evidence to support the decision –and that, as we have, is not the province of judicial review.”

13. In this case, the parties on 13/8/2019 recorded a consent in court duly executed by the 1st applicant and the advocate for the interested parties in the following terms:“By consent the cumulative sum of kshs 163,377,754/= (One hundred and sixty three million, three hundred and seventy thousand, seven hundred and fifty four) which comprises of kshs 147,352,697/= (One hundred and forty seven million, three hundred and fifty two Thousand, six hundred and ninety seven) being the decretal sums and costs and kshs 16,025,057/= (Sixteen million, twenty five thousand and fifty seven) being the agreed interest accrued, be paid as follows: 1) Kshs 80,000,000/= (Eighty million) be paid on or before December 15, 2019. 2) The balance of 83,377,754 (Eighty three million three hundred and seventy seven, seven hundred and fifty four) to be paid on or before the September 15, 2020 3) The warrants of arrest to be lifted. 4) In default of payment execution to issue.”

14. The record shows that the applicants made the 1st installment of the decretal sum on 28/3/2020 in blatant breach of the terms of the consent. It is equally clear that the said installment was way below the agreed sum of Ksh 80,000,000. The applicants continuously defaulted in settlement of the decretal sum as per the terms of the consent, which naturally led to accrual of interest on the unpaid sum. Although the decretal sum has since been paid in full, the accrued interest still remains unpaid, and it is what the interested parties wish to execute by way of obtaining warrants of arrest against the applicants. The consent order provided that in default of any of the terms of the consent, execution was to issue.

15. The procedure of execution is provided under section 38 of the Civil Procedure Act as follows:“Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree— (a) by delivery of any property specifically decreed; (b) by attachment and sale, or by sale without attachment, of any property; (c) by attachment of debts; (d) by arrest and detention in prison of any person; (e) by appointing a receiver; or (f) in such other manner as the nature of the relief granted may require: Provided that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the court, for reasons to be recorded in writing, is satisfied— (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree— (i) is likely to abscond or leave the local limits of the jurisdiction of the court; or (ii) has after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property; or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree, or some substantial part thereof, and refuses or neglects, or has refused or neglected, to pay the same, but in calculating such means there shall be left out of account any property which, by or under any law, or custom having the force of law, for the time being in force, is exempt from attachment in execution of the decree; or (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.”

16. Whilst the applicants contend that the warrants of arrest were issued arbitrarily without prior notice to show cause and in violation of section 21 of the Government Proceedings Act and section 38 of the Civil Procedure Act, the interested parties insist that they are effecting arrest of the 1st applicant in his capacity as the chief officer finance Isiolo County Government, and not his personal capacity.

17. Section 21 of the Government Proceedings Act provides as follows:“(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.”

18. I respectfully agree with the definition of government in Republic v Attorney General & another ex-parte Stephen Wanyee Roki [2016] eKLR (Odunga, J (as he then was)) as follows:“Although the provisions of the Government Proceedings Act do not expressly refer to County Governments, section 7 of the Sixth Schedule to the Constitution (Transitional And Consequential Provisions)……It follows that the provisions of the Government Proceedings Act, a legal instrument enacted before the effective date must be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution. One such construction would be the reality that Government is now at two levels and Article 189(1) (a) of the Constitution requires that the Constitutional status and institutions of government at both the National and County levels be respected. In my view such respect cannot be achieved unless both levels of Government are treated equally and one such area would be with respect to execution proceedings.”

19. In this case however, the interested parties are merely enforcing the terms of the consent of 13/8/2019, which is legally binding on the parties.

20. The law on variation of consent judgments and/or orders is now settled to the effect that such variation can only be on grounds that would allow for a contract to be vitiated. These grounds include fraud, collusion, illegality, mistake, an agreement being contrary to the policy of the Court, absence of sufficient material facts and ignorance of material facts. In Flora N Wasike v Destimo Wamboko (1988) eKLR, (Hancox JA as he then was) held as follows: "It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out."

21. Earlier in a decision approved in Wasike v Wamboko, the Court of Appeal for East Africa in Brooke Bond Liebig (T) Ltd v Mallya (1975) EA 266 held as follows:-“Although the application was made under the wrong order there is power under O.43 to review judgments. A disputed compromise may be challenged in the suit itself. A consent judgment may only be set aside for fraud, collusion, or for any reason which would enable the Court to set aside an agreement. No grounds for interfering with the compromise existed in this case.”

22. The court finds that the interested parties’ efforts to enforce their legally obtained decree must be protected rather than thwarted. However, the trial court may consider issues around mode of execution suitable in the circumstances of this case.

23. This court finds that there are no vitiating factors to warrant the setting aside the consent order of 13/8/2019.

Obiter 24. It would appear that an arguable case arises whether a government officer may be imprisoned in civil jail for the default of his employer to satisfy a debt order. It might appear to be a reversal of the principle of vicarious liability. The issue is, however, not before the Court in tis judicial review proceedings, and the court makes no determination on it. It is the execution itself not he mode of execution that was the challenge before the court.

Orders 25. Accordingly, for the reasons set out above, this court finds no merit in the application dated 15/8/2022, and it is dismissed. The matter shall proceed for the hearing and determination on merits of the applications pending before the trial court.

26. The costs of the application shall be paid by the ex parte applicant to the Respondent and Interested Parties.

DATED AND DELIVERED ON THIS 15THDAY OF DECEMBER, 2022. EDWARD M. MURIITHIJUDGEAppearances:M/S Phillip Henry Associates for the Ex Parte Applicants.M/S Mbogo & Muriuki Advocates for the Interested Parties.