[2023] KEHC 25174 (KLR)

Republic v Clerk Migori County Assembly (Judicial Review E010 of 2023) [2023] KEHC 25174 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25174 (KLR)

Republic of Kenya

In the High Court at Kisumu

Judicial Review E010 of 2023

MS Shariff, J

November 10, 2023

Between

Republic

Applicant

and

Clerk Migori County Assembly

Respondent

Ruling

1. The Applicant has approached this court vide a notice of motion dated 8th May 2023 brought under the provisions of Order 53 Rules 1, 2, and 3 of the Civil Procedure Rules, Law Reform Act and the Regulations of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedom of the Individual) High Court Practice and Procedure Rules 2006, Section 3A of the Court Procedure Act, Section 134 of the County Government Act 2012 as read with Section 129 of the Public Finance Management Act 2012 and supported by an affidavit of James Aggrey Mwamu advocate sworn on even date, wherein wherein to seek the following orders:i.Spentii.That the court be pleased to grant an order of Mandamus compelling the 1st and 2nd Respondents to comply with the Judgment of Justice Ochieng dated 4th June 2019 in (Misc. No. 103 of 2018 James Aggrey Mwamu t/a Mwamu and Company Advocates vs Migori County Assembly) requiring them to pay Kshs.7,519,282. 40 together with interests.iii.That the court be pleased to grant an order of Mandamus compelling the 1st, 2nd and 3rd Respondents to pay interest at court rates from 4th June 2019 to date amounting to Kshs.4,210,798. 15. iv.That’s costs of this application be provided for.

2. The gist of this application is that the Applicant and the Respondent once enjoyed an advocate/Client relationship and in the wake of their divorce, the Applicant’s costs were taxed at Kshs.7,518,282. 40 on 25th July 2018. It is the Applicant’s position that despite service of the decree and the certificate of order upon the Respondents, they have failed to satisfy that decree hence the need for orders of Mandamus to issue against them to compel them to satisfy that decree.

3. This application is resisted by the Respondents by a replying affidavit of Vincencia Awino Kionge sworn on 17th May 2013 wherein service is denied and she deposes that the purported affidavit of service sworn by process server one Mr. Walter Opiyo Juma on 1st March 2023 was defective and contained contradictory statements that render the same useless and of no probative value.

4. The Respondents maintain that the Applicant has not complied with the provision of section 21 of the Government Proceedings Act (2012) which stipulates the procedure to be adopted when executing against the government wherefore they pray that this application be dismissed with costs.

Analysis and Determination: 5. The issue that emerges for determination is whether the Applicant has complied with Section 21 of the Government Proceedings Act 2012 and therefore entitled to the orders sought.

6. I have perused the affidavit of service sworn by Walter Opiyo Juma on 1st March 2023 and I note that paragraph 4 thereof is contradictory as it states that: “That on that very day I proceeded to the Respondents office within Migori town where I met secretary by the name Linet whom after introduction I served by tendering a copy of the certificate of order which she received but decline to sign. That I found the secretary who after introduction, accepted service by stamping and signing on the front page of my copies which I return to this honourable court duly served.”

7. It is evident that service was not affected upon the Respondent as required by section 21 (4) of the Government Proceedings Act which states that:“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."

8. On the balance this application must for reasons afforested fail and the same is thus dismissed with costs to the Respondent assessed at Kshs.10,000.

DELIVERED, SIGNED AND DATED AT KISUMU THIS 10TH DAY OF NOVEMBER, 2023. MWANAISHA S. SHARIFFJUDGE