[2022] KEHC 9768 (KLR)

Republic v Chief Officer Finance Migori County Government & another; Malago (Exparte) (Judicial Review E003 of 2022) [2022] KEHC 9768 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9768 (KLR)

Republic of Kenya

In the High Court at Migori

Judicial Review E003 of 2022

RPV Wendoh, J

July 21, 2022

Between

Republic

Applicant

and

Chief Officer Finance Migori County Government

1st Respondent

Sub County Administrator, Rongo Sub County

2nd Respondent

and

Esther Moraa Malago

Exparte

Judgment

1. The application for determination is a Notice of Motion dated 20/12/2021 brought under the provisions of Order 53 of the Civil Procedure Rules, article 159 of the Constitution and section 5 of the Judicature Act. The ex - parte applicant through the firm of P. R. Ojala & Co. Advocates seeks the following orders: -i.That an order of Mandamus be issued and the same be directed to the Chief Officer Finance/County Treasurer, Migori County and Sub County Administrator, Rongo County.ii.That the Chief Officer, Finance do comply by paying to the applicant within 7 days the sum of Kshs. 348,990/= being the value of the container and the items in it, costs and accrued interest upto 7/7/2021 in respect of Senior Resident Magistrate’s Court Rongo Civil Suit No. 41 of 2018. iii.That the Chief Officer shall in addition pay to the applicant further interest on the said sum of Kshs. 119, 675/= at the rate of 14% from the 13/4/2021 until payment in full.iv.That in default, notice to show cause do issue against the Chief Officer, Finance, Migori County and Sub County Administrator, Rongo Sub County for them to show cause why they should not be cited for contempt of court.v.Costs be provided for.

2. The application is based on grounds appearing on the face thereof and the affidavit in support sworn by Esther Moraa Malago dated 20/12/2021.

3. According to the ex-parte applicant, he obtained judgment against the 3rd respondent in Migori CMCC No. 528 of 2018 and Migori HCCA No. 141 of 2019 for a total of Kshs. 1,731,518/= which amount continues to attract interest at 14% till date of payment.

4. The ex-parte applicant stated that she sued the Migori County Government in Rongo Civil Suit No. 41 of 2018 where she was awarded Kshs. 348,990/= together with costs and interests; that she filed a bill of costs and the costs were assessed at Kshs. 119,675/=; that her advocates applied for a Certificate of Order of Costs against the County Government and the sum came to a total of Kshs. 467,665/= or in the alternative the Respondent was ordered to release her container and all the goods in it plus further interest which is accruing from 7/8/2019. It was further stated that the respondents have refused to pay the outstanding sum despite notice to do so.

5. The application is not opposed. Despite numerous service, the respondents chose not to participate in these proceedings. There is an affidavit of service dated 22/4/2022, sworn by Rajab O. Otieno the process server on record.

6. I have considered the application and the supporting documents annexed to the affidavit in support as “EMM1 (a), (b) & (c)” and “EMMII” being the Certificate of Order against the Government, the Certificate of Order of Costs, Decree and a Notice to the respondents all dated 14/4/2021 respectively. I have also considered the submissions by the ex-parte applicant.

7. It is not in dispute that a judgement was delivered in favour of the ex-parte applicant in Rongo Civil Suit No. 41 of 2018. In the decree dated 14/4/2021. Tthe trial court ordered that the defendant (Migori County Government) release the container (kiosk) with all the items in it or alternatively the defendant to pay the value of the of the container and the items in it. The court also awarded costs and interest on the same to the ex-parte applicant from the date of the judgement. The costs of the suit were assessed at Kshs. 119,675/= and interest payable on the said costs from 13/4/2021 until the date of payment.

8. The ex-parteapplicant is simply seeking an order of mandamus to compel the respondents to perform their public duty, that is to satisfy the decree which they have failed to do, to the detriment of the ex-parte applicant.

9. In the case of Republic v Attorney General &anotherex-parte Ongata Works Limited [2016] eKLR Odunga J referred to the case of R (Regina) v Dudsheath,ex parte, Meredith [1950] 2 ALL ER 741, AT 743, where Lord Goddard C. J. held as follows:“It is important to remember that "mandamus" is neither a writ of course nor a writ of right, but that it will be granted if the duty is in the nature of a public duty, and specially affects the rights of an individual, provided there is no more appropriate remedy... "

10. Before an order of Mandamuscan issue, the ex-parte applicant must comply with section 21 of the Government Proceedings Act. In Kisya Investments Ltd v The A G (2005) 1KLR 74, the court explained why the strict and elaborate procedure under that section has to be followed, that is to allow the Government time to enable it to make arrangements to satisfy the decree.

11. In this case, the ex-parteapplicant is asking this court to compel the 1st respondent to pay her a sum of Kshs. 348,990/= being the value of the container and the items in it, costs and accrued interest up to 7/7/2021. In addition, the ex-parte applicant wants the court to compel the 1st respondent to pay her further interest on the sum of Kshs. 119,675/= at the rate of 14% from 13/4/2021 until payment in full.

12. Section 21(3) of the Government Proceedings Act cap 40 Laws of Kenya provides as follows: -“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” (emphasis)

13. The law is particular that the Certificate of Costs should state the amount payable. The Decree and the Certificate of Order annexed as “EMM1 (c) and (a)” respectively both dated 14/4/2019 do not state the specific value of the goods in the container. The issue of the value of goods in the container being Kshs. 348,990/= have arisen at this point in the proceedings. The value of the goods in the container is an arguable issue which would have been best handled by the trial court. The court cannot issue an order for payment of the amount of Kshs. 348,900/= together with interests without evidence of a Certificate of Order of Costs stating the said amount.

14. The Certificate of Order of Costs against the Government “(EMM-1(b)” dated 14/4/2021 assessed the costs payable as Kshs. 119,675/= and interest on the said costs was to run from 13/4/2021 until the date of payment. The ex-parte applicant has satisfied the requirement of extracting a Certificate of Order as envisaged under section 21 of the Government Proceedings Act.

15. Whether the ex-parteapplicant is deserving of the order of Mandamus: Having found that the ex-parte applicant is fully compliant in terms of the costs payable to her, the court finds that she is deserving of an order of Mandamus on the payment of the judgment decree and the costs assessed at Kshs. 119,675/= and interest payable at the rate of 14% from 13/4/2021 until payment in full.

16. The ex-parte applicant has asked this court to also issue an order of a notice to show cause against the respondents on why the should not be cited for contempt of court in default of payment. For a notice to show cause to issue, disobedience of the court order must be established first. The ex-parte applicant is at liberty to move the court if at all there is disobedience of the court order.

17. From the foregone, the application partly succeeds and the following orders do issue:-i.An order of Mandamus compelling the respondent to release to the applicant her container (Kiosk) with all items and contents within seven (7) days hereof.ii.An order of Mandamus be and is hereby issued against the respondents to pay the ex-parteapplicant a sum of Kshs. 119,675/= with interest at the rate of 14% from 13/4/2021 until payment in full.iii.Costs of this application assessed at Kshs. 20,000/=.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 21ST DAY OF JULY, 2022. R. WENDOHJUDGEJudgment delivered in the presence ofHoly holding brief Mr. Ojala for the Ex-Parte Applicant.No appearance for the Respondents.Nyauke Court Assistant.