[2022] KEHC 1357 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

JUDICIAL REVIEW APPLICATION NO. E009 OF 2021

IN THE MATTER OF

AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY WAY OF MANDAMUS

AND

BETWEEN

KENSILVER EXPRESS LIMITED....................................................................APPLICANT

VERSUS

COUNTY GOVERNMENT OF MERU...................................................1ST RESPONDENT

COUNTY EXECUTIVE COMMITTEE FINANCE,

COUNTY GOVERNMENT OF MERU....................................................2ND REPONDENT

COUNTY SECRETARY, COUNTY GOVERNMENT OF MERU.......3RD REPONDENT

RULING

Applicant’s case

1. By a judgment rendered on 13th May 2020 in MERU CMCC NO. 58 OF 2018, judgment was entered in favor of the Applicant as against the 1st Respondent for the sum of Kshs. 40,0000 together with costs and interest at court rates. The costs were subsequently assessed at Kshs. 114,805 and a Certificate Order was issued against the 1st Respondent on 29th March 2021.

2. Notwithstanding the service of the Certificate Order against the Government and demand notices, the decreed sum remains unsettled thereby denying the Applicant the fruits of his judgment.

3. Applicant now seeks the following orders:

a. An order of Mandamus compelling the Respondents herein to pay the following sums to the applicant

b. Kshs. 40,000 together with interest thereon at court rates from 13th day of May 2020 until payment in full, being general damages awarded to the ex-parte applicant herein against the 1st Respondent in MERU CMCC NO 58 OF 2018.

c. Kshs. 114,805 together with interest thereon at court rates from 25th January 2021 being costs awarded to the ex-parte applicant herein against the 1st Respondent in MERU CMCC NO 58 OF 2018

d. Costs

e. Any other relief

Respondents’ case

4. Joseph Chabari the Chief Officer Finance, Economic Planning and ICT of the 1st Respondent by his Replying Affidavit sworn on 02nd March 2022 avers that the financial budget for the year 2021-2022 has been prepared and money already committed to various vote heads by the various departments of the County Governments and that the failure to settle the decretal sum is due to budgetary restrictions.

Analysis and determination

5. I have considered the application in the light of the affidavits on record. Section 21 (3) of Government Proceedings Act requires an accounting officer to whom a Certificate Order against the Government to 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.

6. Respondents do not deny that the Applicant is entitled to payment of the sum in the Certificate but dismiss the claim as unbudgeted for.

7. In Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza [2012] Eklr, Githua J stated as follows:

“In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon Attorney General, section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues.”

8. In Jaribu Credit Traders Limited vs Nairobi County Government [2018] eKLR, the addressed itself to the issue of payment of a decretal amount by a public entity as hereunder;

“It should also be noted that the law does not condition settlement of decree on budgetary allocations. In any case, the decree subject of these proceedings is over one year from 29th February 2016 and each year that passes, the respondent County Government is allocated funds and generates revenue from its own sources to cater for such eventualities/ meeting their legal obligations especially for a civil suit that proceeded to hearing interpartes hence there can be no genuine claim that the respondent has been ambushed with these mandamus proceedings. Furthermore, provision for settlement of decrees emanating from courts is something each Government agency must make in its annual budgetary projections. This position is supported by the holding in Republic vs Permanent Secretary of State for Provincial Administration (supra) where the court stated, and I agree:

“This provision [section 21(1)(2) of Cap 40] does not condition payment to budgetary allocation and Parliamentary approval of government expenditure in the financial year subsequent to which government liability accrues. The respondent’s claim that the applicant should have waited until the start of the next financial year to enforce payment of the decree issued in his favour cannot be sustained firstly because it has no legal basis and secondly because it is the responsibility of the government to make contingency provisions for its liabilities in tort in each financial year so that successful litigants who obtain decrees against the government are not left without a remedy.”

9. I associate myself with the holding in the aforementioned cases and find that the settlement of the decretal sum to the Applicant is not conditioned on budgetary allocation and parliamentary approval of Government expenditure but on the fact that the Respondent have a lawful duty to obey court orders for court orders are not made in vain.

10. From the foregoing, I find that the Applicant has made out a case for the issuance of an order of mandamus and it is therefore hereby ordered:

1) A writ of Mandamus is hereby issued against the Respondents compelling satisfaction of the decree of the court in MERU CMCC NO. 58 OF 2018 forthwith

2) Respondents are condemned to pay costs of this application.

DATED AT MERU THIS 17TH DAY OF MARCH 2022

T. W. CHERERE

JUDGE

Appearances

Court AssistantMorris Kinoti

For the Applicant - Mr. Gitonga for J.G.Gitonga & Co. Advocates

For the Respondents - N/A