https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9637

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **JUDICIAL REVIEW NO. E003 OF 2021** **IN THE MATTER OF GOVERNMENT PROCEEDINGS ACT** **AND** **IN THE MATTER OF THE COUNTY GOVERNMENT ACT** **AND** **IN THE MATTER OF THE LAW REFORM ACT** **AND** **IN THE MATTER OF ORDER 53(1) OF THE CIVIL PROCEDURE RULES** **AND** **IN THE MATTER OF ARTICLES 1(1)(2), 2(1)(2), 10(1), B), 20(1), 21(1), 23(1), 27(1), 28, 73, 156 AND 165 OF THE CONSTITUTION OF KENYA** **BETWEEN** **REPUBLIC...............................................................................................................APPLICANT** **VERSUS** **COUNTY SECRETARY, COUNTY** **GOVERNMENT OF UASIN GISHU...........................................................1ST RESPONDENT** **COUNTY SECRETARY, COUNTY** **GOVERNMENT OF UASIN GISHU..........................................................2ND RESPONDENT** **COUNTY GOVERNMENT OF UASIN GISHU........................................3RD RESPONDENT** **AND** **PAUL GICHERU P/A GICHERU & CO. ADVOCATES.......................................EX PARTE** **JUDGMENT** 1. This is an interesting but disturbing case. I say so because the initial amount payable to the Applicant is not in dispute but, while the Respondent claims that it has settled that amount in full, the Applicant claims that he has only received a part thereof. One would imagine that it would therefore be easy and straightforward for them, by themselves, without the Court’s intervention, to establish the amount paid as what it would entail would be a simple tracing of the payment trail, if any. Not so with the parties herein. 2. The matter was initiated by way of the Notice of Motion dated 5/10/2021, filed through **Messrs Kinoti & Kibe & Co. Advocates**. Being a Judicial Review case, ss provided under the Rules, the same was filed after grant of leave. The prayers sought were as follows: 3. The ex parte Applicant be granted an order of Mandamus compelling the Respondents to settle the decretal amount/costs plus interest in the following matters:- | | | | | --- | --- | --- | | **i)** | **Eldoret HC Misc. Application No. 160 of 2013** | Kshs. 45,691,288.00 | | **ii)** | **Eldoret HC Misc. Application No. 116 of 2013** | Kshs. 99,870.00 | | **iii)** | **Eldoret HC Misc. Application No. 117 of 2013** | Kshs. 105,870.00 | | **iv)** | **Eldoret HC Misc. Application No. 122 of 2013** | Kshs. 992,730.00 | | **v)** | **Eldoret HC Misc. Application No. 124 of 2013** | Kshs. 210,886.00 | | **vi)** | **Eldoret HC Misc. Application No. 127 of 2013** | Kshs. 115,886.00 | | **vii)** | **Eldoret HC Misc. Application No. 128 of 2013** | Kshs. 209,931.00 | | **viii)** | **Eldoret HC Misc. Application No. 129 of 2013** | Kshs. 141,600.00 | | | **Total less interest** | **Kshs. 47,567,435.00** | 1. The Applicant be awarded the costs of this Application. 2. The Application is supported by the Verifying Affidavit sworn by the late **Peter Gicheru Advocate**, who introduced himself as the proprietor of, and practicing as the ex parte Applicant law firm. He deponed that the 3rd Respondent being one of his clients, they entered into the Agreement dated 28/10/2014 to govern their Advocate-Client relationship, the terms whereof were adopted in **Eldoret High Court Misc. Application No. 160 of 2013**, and a Court order thereof issued on 10/09/2015. He stated that in respect to **Eldoret High Court Misc. Application No. 18 of 2011**, the parties agreed on the amount of Kshs 60,000,000/- as the Advocate-Client costs, and by a Certificate of Costs against the 3rd Respondent dated 8/01/2020, the Court certified the sum of Kshs 45,691,288/- as still outstanding from the 3rd Respondent, which amount has remained unpaid. He deponed that in addition to the said one matter, his law firm was also handling other matters on behalf of the 3rd Respondent which were also subject of the same Agreement but that despite continuing to handle the matters, some of which were even successful, and forwarding Fee Notes to the Respondents for settlement, the same remained outstanding. He contended that as confirmed under Clause (c) of the Agreement, the terms thereof were agreed upon after thorough due diligence and authentication process. He urged further that because of the Respondents’ refusal to pay, he decided to subject the other matters he is handling for the 3rd Respondent for taxation and in respect to which the Courts have issued respective Certificates of Taxation 3. The Notice of Motion is opposed by the Respondents by way of the Replying Affidavit sworn on 18/10/2021 by **Silas Rono**, who introduced himself as the 3rd Respondent’s Director of Payments. The Affidavit is filed through **Messrs G&A Advocates**. **Silas Rono** agreed that the ***ex parte*** Applicant is indeed empanelled by the 3rd Respondent as one of its external Legal Service providers, and also handled matters relating to the 3rd Respondent’s, legal predecessors, the Municipal Counsil of Eldoret and the Wareng County Council. He then basically conceded to the existence of the Agreement, Certificate of Costs, and orders referred to by the Applicant. He however contended that the Respondents have in fact fully settled the Fee Notes alleged herein, and he then proceeded to give particulars of the alleged payments. 4. The Applicant then filed the Further Affidavit he swore on 27/10/2021 in which he challenged the said **Sila Rono’s** capacity to swear the Affidavit, urging that he did not disclose his sources of information, but also pointed out the admission of various facts in the Affidavit. He however observed that the particulars of payments exhibited in the Replying Affidavit are all in respect to only the said **Eldoret High Court Misc. Application No. 160 of 2013**, and that the deponent did not make any denial of non-payment in all the other matters in issue. He also denied knowledge of the bank accounts alleged in the Replying Affidavit as being the accounts into which payments were made, and also urged that the documents exhibited alleging payments could not be verified. 5. The Respondent, too, filed the Further Affidavit sworn by, again, the same **Silas Rono** on 4/11/2021, in which he basically reiterated the matters he had earlier deponed save that he added that the payments were made through the Central Bank of Kenya to a bank account held at the Transnational Bank. and the amounts so paid were subsequently transferred to the Applicant’s bank account held at the same Transnational Bank, part by RTGS. He also urged that its Advocates did ask the Transnational Bank to confirm that the bank accounts indeed belonged to the Applicant but the bank advised that it could only make such disclosure on the strength of a Court order. He then prayed that the Court do issue such order. 6. The parties then filed written Submissions and **Ogola J** delivered a Ruling on the Application on 20/12/2021 in which he issued an order of Mandamus compelling the Respondents to pay the Applicant the decretal sum for all the amounts claimed plus interest thereon, save for the claim of **Kshs 45,691,288**/- in respect to the said **Eldoret High Court Misc. Application No. 160 of 2013**, which he directed, would be subjected to ***viva voce*** trial. The trial was however delayed apparently by pursuit by the Applicant, now represented by a new law firm, **Messrs RGO Advocates**, of payment of the portion already awarded as aforesaid. Upon the Applicant’s prompting, the Court even issued Notice to Show Cause why the holders of the 1st and 2nd Respondent’s offices should not be committed to civil jail for failing to pay the said portion. Indeed, the two officers appeared in Court on 26/10/2023 and were examined under oath after which I gave the parties time to discuss settlement. My understanding is that thereafter, the portion was substantially settled. The balance said to be outstanding does not however form the subject of this Ruling. Regarding the claim of **Kshs 45,691,288**/-, the subject of this Ruling, in respect to **Eldoret High Court Misc. Application No. 160 of 2013**, the parties, upon conferring with the Court, later, on 17/07/2025, agreed to drop the ***viva voce*** trial as earlier directed, and instead, agreed to file written Submissions. 7. Pursuant to the above, the ex parte Applicant filed the Submissions dated 20/11/2025, while the Respondent filed the Submissions dated 4/12/2025. **Ex Parte Applicant’s Submissions** 1. The Applicant’s Counsel, **Mr. Othuro**, confirmed that payments for the claims particularized in prayers (i) to (viii) in the Notice of Motion have since been settled save for a balance of interest of Kshs 32,538/-. In respect to the main claim for Kshs 45,691,288/- under **Eldoret HC Misc. Application No. 160 of 2013**, in refuting the Respondent’s contention that it had made the full payment of Kshs 60,000,000/-, he reiterated the denials made by the Applicant in the Further Affidavit, including that the Applicant’s denial of knowledge of the bank accounts alleged to be the accounts into which the payments were made, and also reiterated that the documents exhibited alleging payment cannot be verified. He submitted that the supporting documents exhibited are screen grabs and photographs of a computer screen, and wondered why no copies of cheques, RTGs, deposit slips or EFTs have been produced. He also urged that a voucher created or generated internally is not proof of payment especially for such vast sums of money. He also pointed out that the allegation of payments made through the Central Bank of Kenya into an account held at the Transnational Bank is not backed by any evidence, and termed it as hearsay, as the deponent thereof did not reveal his sources of knowledge. Counsel also reiterated the Applicant’s denial of holding any bank account at the Transnational Bank, and also wondered since when did the Central Bank begin making payments to third parties on behalf of Counties when the budget process is that the Government releases money yearly to Counties, which then by themselves make payments to suppliers? He submitted that the **Public Finance Management Act** does not have a scenario where the Central Bank pays law firms on behalf of Counties. He also pointed out that in any event, the items relied on by the Respondents, even if genuine, add up to a sum of only Kshs 59,000,000/-, and not Kshs 60,000,000/-, which, according to him, is further proof that the Respondents are simply “cooking up” figures, as their own maths does not add up. Counsel also reiterated the Applicant’s denial of any knowledge of the letter from **Messrs Njuguna & Co. Advocates** acknowledging receipt of Kshs 30,000,000/- on behalf of the Applicant, reiterating the Applicant’s denial of at any point instructing the said law firm to represent him. 2. Regarding accrual of interest, Counsel contended that the consent order having been recorded on 4/11/2014, interest should accrue from that date, urging that the Respondents have unjustifiably failed to settle the amount for all this long, and also that the Respondents ignored the several demand letters served on them. He therefore proposed interest at 14% on the said balance of Kshs 45,619,288/- with effect from 4/11/2014. He asked the Court to apply “***the man on the omnibus***” test and determine which version between that of the Applicant’s and the one by the Respondents’ is reasonable. In conclusion, he submitted that if the Applicant had indeed already been paid in full but is still asking for the same payment a second time, the Respondents would, most probably, have referred the matter to the investigative and anti-corruption State organs for investigation and institution of a criminal offence. He also urged the Court to take judicial notice of County Governments’ notoriety of non-payment to their suppliers. He also cited several authorities in support of the various limbs of his submissions. **Respondent’s Submissions** 1. Counsel for the Respondent, **Mr. Mwangi Kan’gu**, on his part, reiterated that the Respondent had fully settled the agreed amount of Kshs 60,000,000/- that was due under **Eldoret HC Misc. Application No. 160 of 2013**, and thus reiterated denial of the Applicant’s insistence that an amount of Kshs 45,576,435/- was still due. He referred the Court to the particulars given in the Replying Affidavit. Counsel then observed that the Agreement on the fees was entered into on 28/10/2014, and was adopted by the Court on 10/09/2015, by which time, he urged, the Applicant had already been paid a sum of Kshs 30,000,000/- inclusive of taxes, and which payment was acknowledged by the law firm of **Messrs Njuguna & Co**. by way of its letter dated 9/02/2015. He dismissed the Applicant’s disowning of the of the said law firm and also observed that all the payment documents produced bear the Applicant’s name as the payee. He urged that having demonstrated that the payments were made, the burden now shifted to the Applicant to disprove the same, which the Applicant did not. Regarding the Applicant’s criticism of the Respondent’s production of only vouchers as supporting documents for the payments, with no copies of cheques, Counsel submitted that it is common knowledge that government entities do not make payments by cheque but follow a structured process involving voucher preparation and verification, approvals, payment initiation and final processing through IFMIS. He also asserted that if the Applicant genuinely disputed the payments, nothing would have been easier than producing a bank statement showing that no such funds passed through the account as alleged. 2. He further dismissed the Applicant’s disowning of the said **Messrs Njuguna & Co**. **Advocates**, wondering how a random Advocate by sheer coincidence would write to the Respondent demanding payment of a debt he supposedly knew nothing about, and submitted that the level of detail in the Advocates’ letter, including the exact amounts already paid, the outstanding balance, and the timelines hardly reflects the handiwork of an Advocate acting without proper instructions. Counsel pointed out that the said letter dated 9/02/2015 has always been on record and despite the Applicant alleging that he never issued any such instructions to the said **Messrs Njuguna & Co**. **Advocates**, no complaint has been lodged with the criminal investigative organs. In conclusion, he contended that the Constitution mandates that public money be used in a prudent and responsible manner. Like his counterpart, he, too, cited several authorities in support of the various limbs of his submissions. **Determination** 1. As aforesaid, the initial amount agreed as being payable to the Applicant at Kshs 60,000,000/- as at 28/10/2024 is not in dispute, and neither is the certification by the Court of the balance outstanding at Kshs 45,691,288/- as at 8/01/2020. 2. I say so because the parties are in unison that by their written and executed Agreement dated 28/10/2014, they agreed that the 3rd Respondent owed the Applicant fees at the sum of Kshs 60,000,000/- in respect to legal services rendered in **Eldoret HC Misc. Application No. 160 of 2013**. The parties also agree that it was a term of the Agreement that the said amount of Kshs 60,000,000/- would be settled in 4 instalments of Kshs 15,000,000/- each, payable in the months of November, December, January, and February 2014, respectively. The parties further agree that the Agreement was adopted by the Court and the relevant terms thereof issued as part of the Court Order dated 10/09/2015. They also agree that subsequently, the Court issued the “Certificate of Order for Costs Against the Government” dated 8/01/2020, which certified the balance still outstanding by that date at Kshs 45,691,288/-, the amount now claimed herein by the Applicant. 3. As earlier stated, while the Respondent swears that it fully settled the entire amount of Kshs 60,000,000/- even before this matter was filed, the Applicant insists that the sum of Kshs 45,691,288/- documented in the ***“***Certificate of Order for Costs Against the Government***”*** is still outstanding. 4. The only dispute, which I am now called upon to determine as an issue is therefore “**whether the Respondent has indeed paid the said balance of Kshs 45,691,288/- in full**”. 5. As already highlighted above, the Respondent swears that it settled the amount of Kshs 60,000/- in the following manner: | | | | | | --- | --- | --- | --- | | | **Date of payment** | **Mode of payment** | **Amount** | | **i)** | 4/11/2014 | Paid to A/C No. 1000004274 held at CBK and subsequently transferred to A/C No. 0130989001 held at Transnational Bank held by the Applicant | Kshs 15,000,000/- | | **ii)** | 14/01/2015 | Paid by RTGS to the same A/C No. held at Transnational Bank held by the Applicant | Kshs 15,000,000/- | | **iii)** | 20/02/2015 | Paid by RTGS to the same A/C No. held at Transnational Bank held by the Applicant | Kshs 15,000,000/- | | **iv)** | 2/02/2016 | Paid by RTGS to the same A/C No. held at Transnational Bank held by the Applicant | Kshs 7,000,000/- | | **v)** | 14/03/2016 | Paid by RTGS to the same A/C No. held at Transnational Bank held by the Applicant | Kshs 7,000,000/- | 1. I note however, as correctly observed by **Mr. Othuro**, Counsel for the Applicant, the particularization above adds up to an aggregate sum of Kshs 59,000,000/-, and not Kshs 60,000,000/- as alleged by the Respondent, thus short of Kshs 1,000,000/-.. 2. Be that as it may, as already pointed out, the Applicant has, in his Further Affidavit, denied knowledge of the bank account number 0130989001 said to be held at Transnational Bank alleged by the Respondent to be the account into which it made the payments. He, in fact, even denied ever holding any bank account at the Transnational Bank. 3. As also highlighted, the Applicant has produced a copy of the letter dated 9/02/2015 from the law firm of **Messrs Njuguna & Co**. which acknowledges payment of the 1st and 2nd instalments indicated above. However, as further highlighted, the Applicant has, in his Further Affidavit, vehemently denied ever instructing the said law firm to carry out any debt collection for, or on his behalf, or to represent him in the dispute. While it is curious, as correctly pointed out by **Mr. Mwangi Kangu**, Counsel for the Respondent, how the said law firm got almost all the facts, and even timelines, right, if indeed it had no instructions, that alone, will be a very speculative way for this Court to hold that the Applicant did indeed instruct the said law firm. It will not therefore add much to a determination on the issue. 4. **Mr. Mwangi Kangu** also submitted that all the payment documents produced by the Respondent bear the Applicant’s name as the payee. While this may be true, it is not lost on me that the payment vouchers produced as supporting documents appear to be the Respondent’s own internal documents prepared in preparation for payments to be made. Whether such intended payments were actually made cannot obviously be demonstrated by internal vouchers. Indeed, as correctly pointed out by **Mr. Othuro**, the payment slips exhibited appear to be “screen grabs” or screen-shots”, or photographs of an undisclosed computer screen. The source and authenticity of such secondary evidence cannot therefore be easily verified, and the Respondent has not volunteered any disclosure about the source thereof. 5. Again, the mere fact that the “screen-grabs” bear the name of “***Gicheru & Co***.” cannot by itself serve as sufficient proof that the Applicant’s law firm is the same one referred to therein. That there could be many more entities operating the name“***Gicheru & Cos***” out there cannot be ruled out. The Applicant having denied holding any such bank account, the Respondent ought to have done more to demonstrate to the Court that the “***Gicheru & Co***.” referred to in the “screen-grab” was no other “***Gicheru & Co***.” but the Applicant’s. 6. **Mr. Mwangi Kangu** has also correctly submitted that in making payments, government entities follow a structured process involving voucher preparation and verification, approvals, payment initiation and final processing through IFMIS, apart from the internal payment vouchers, which cannot prove actual payment. However, the Respondent has not produced any further documents to sufficiently demonstrate that such structured process involving voucher preparation and verification, approvals, payment initiation and final processing through IFMIS was actually carried out, and if so, what it entailed, and the most important part, how and whether it matured into actual outward payment to the Applicant. I say so because, in my view, the internal vouchers and unexplained “screen-grabs” from a computer do not meet the threshold. 7. **Mr. Mwangi Kangu** also pointed out that the said letter dated 9/02/2015 from **Messrs Njuguna & Co**. **Advocates**, has always been on record and despite the Applicant alleging that he never issued any debt-collection instructions to that law firm, he never lodged any complaint with the criminal investigatory organs. While this may, again, be true, I would say that the Respondent, as a governmental body, is the one that bore an even bigger responsibility or obligation to report the alleged “fraud” to the investigatory authorities considering that it was public money at risk, and its senior officers risked prosecution if they were found to have made unwarranted or false or double payments to the Applicant. In fact, if any fraud did take place over this matter, then it is highly unlikely that it was not actively facilitated or participated in by the Respondent’s own officers, and as such, an “internal job”. Why then would the Respondent look the other way and not invite or initiate an investigation? The continued inaction or hesitance by the Respondent to invite the relative organs to investigate the alleged “fraud”, if any, leaves me with a lot of unanswered questions and doubts. 8. Regarding the Applicant’s denial of operating the alleged bank account at Transnational Bank, and of holding any bank account at the Transnational Bank, it is obvious that while entering into Advocate-Client relationship which would definitely entail payment of legal fees from time to time, the Respondent must have filled in a Form, or by any other way, supplied or given to the Respondent the particulars of his bank account into which the Respondent was to make payment in legal fees. That is standard practice. The Applicant cannot therefore have “plucked from the air” the details and/or particulars of the bank account into which the Applicant’s legal fees were to be paid. It must have been supplied by the Applicant. The Applicant having denied any knowledge of the bank account held at Transnational Bank alleged to be the accounts into which the payments were made, and further, having also denied ever holding any bank account at the Transnational Bank, it was incumbent for the Respondent to disprove the Applicant. 9. To me, the easiest way for the Respondent to have disproved the Applicant’s disowning of the bank account would have been to produce the Form filled, or any other kind of communication, or instructions from the Applicant supplying or giving the particulars of his bank account. I did not at any time hear the Respondent alleging that it has searched for the filled Form or similar documents and has failed to trace them perhaps due to the long passage of time or change in record-keeping technology, or that perhaps by some collusion, either internally or externally, such documents have been “hidden” or plucked out from the records, or destroyed or erased from its records. My understanding is therefore that such documents do exist but the Respondent, in its wisdom, deemed it fit not to produce them for the Court’s scrutiny. Was such documentation therefore omitted from the list of documents because perhaps it would have, if produced, weakened the Respondent’s case? To this extent, the Court would be at liberty to draw an “***adverse inference***”. In respect thereto, I cite the decision of **Odunga J (as he then was**), in the case of **Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR**, in which,while following the earlier decision of **Mabeya J** in **Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR**, held as follows: **“……. In *Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR* the court stated as follows:** **“Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides:** **‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him.’** **Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of *Kimotho –vs- KCB (2003) 1 EA 108* the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.”** 1. I may also say that the Agreement confirming the amount due as Kshs 60,000,000/- having been entered in October 2014, and the Certificate of Costs having been issued in January 2020, there being no other explanation given on how the lesser sum of Kshs 45,691,288/- agreed in the Certificate of Costs was arrived at, I presume is that the Applicant acknowledges receipt of a sum of Kshs 14,308,712/- (Kshs 60,000,000 – Kshs 45,691,288/-) during the intervening period. The Applicant does not explain how this payment reached him, whether it was in cash, or by cheque, or by transfer to his bank account. This non-disclosure is curious, but in light of the Applicant’s failure to demonstrate payment, I do not think this non-disclosure by the Applicant would in any way be material. 2. In concluding, I may also observe that **Mr. Mwangi Kangu** submitted that having demonstrated that the payments were made, the burden now shifted to the Applicant to disprove the same, which the Applicant did not. I disagree. As I have explained above, I am not persuaded that the Respondent did enough to demonstrate that payments were made, there being no cogent evidence that payment reached the Applicant. The burden cannot therefore be said to have shifted back to the Applicant in the manner contended. 3. I believe I have said enough to demonstrate that the Respondent has fallen short in disproving the Applicant’s insistence that he never received the payment commanded under the Certificate of Costs. **Final Orders** 1. In the premises, the Notice of Motion dated 5/10/2021 is hereby allowed to the following extent: 2. An order of the writ of Mandamus is hereby issued compelling the Respondents to pay to the Applicant the sum of Kshs 45,691,288/- being legal fees arising from services rendered to the 3rd Respondent as documented in the “**Certificate of Order for Costs Against the Government**”, dated 8/01/2020, issued in **Eldoret High Court Misc. Application No. 160 of 2013**. 3. The Applicant is also awarded interest on the said amount at Court rates from 8/01/2020, the date of the “**Certificate of Order for Costs Against the Government**”. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026** **……………………..** **WANANDA JOHN R. ANURO** **JUDGE** **Delivered in the presence of:** | | | | --- | --- | | **Mr. Othuro for the Applicant** | | | **N/A for the Respondents** | | | **Court Assistant: Brian Kimathi** | |