[2023] KEHC 23396 (KLR)

Republic v County Secretary, Government of Kiambu County & 4 others; Kiugu t/a Kiugu & Company Advocates (Exparte) (Application E127 of 2022) [2023] KEHC 23396 (KLR) (Judicial Review) (13 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23396 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E127 of 2022

J Ngaah, J

October 13, 2023

Between

Republic

Applicant

and

County Secretary, Government Of Kiambu County

1st Respondent

County Executive Committee Member for Finance, Government of Kiambu County

2nd Respondent

Chief Officer Finance, Government Of Kiambu County

3rd Respondent

Governor, Government Of Kiambu County

4th Respondent

Government of Kiambu County

5th Respondent

and

Geoffrey Muriungi Kiugu t/a Kiugu & Company Advocates

Exparte

Judgment

1. The applicant’s application is a motion dated 1 March, 2023 expressed to be filed under Section 8 and 9 of the Law Reform Act Cap 26; Sections 1A, 1B, and 3A of the Civil Procedure Act and Orders 53 Rule 1(1), Rule 3 (1), and Rule 4 (1) of the Civil Procedure Rules, 2010. The applicant seeks for the following orders: -a)That an order of mandamus be and is hereby issued to compel the Respondents herein to pay the ex parte Applicant the sum of Kenya Shillings One Million, Five Hundred and Eighty-Eight Thousand, Two Hundred and Nineteen and Eighty Cents (Kshs. 1,588,219. 80/=) being the amount taxed in the Advocates/client Bill of costs dated 25th August, 2021 arising out of Nairobi High Court Judicial Review Case No. 262 of 2015-Dagoretti Slaughter House Company Limited v The County Government of Kiambu.b.That this Honourable court do issue summons to the Respondents to appear before the court and explain non-payment of the sum of Kenya Shillings One Million, Five Hundred and Eighty-Eight Thousand, Two Hundred and Nineteen and Eighty Cents (Kshs. 1,588,219. 80/=) being the amount taxed in the Advocates/client Bill of costs dated 25th August, 2021 arising out of Nairobi High Court Judicial Review Case No. 262 of 2015-Dagoretti Slaughter House Company Limited -vs- County Government of Kiambu.c.Interest be awarded on Kshs. 1,588,219. 80/= at court rates from 17th March, 2022 until payment in full.d.The costs of this application be paid by the Respondents.”

2. The application is based on a statutory statement dated 20 July 2022 and an affidavit sworn on even dated by Geoffrey Muriungi Kiugu, verifying the facts relied upon.

3. According to the applicant, on 17 March, 2022 his advocate/client bill of costs dated 25 August, 2021 arising out of Nairobi High Court Judicial Review Case No. 262 of 2015-Dagoretti Slaughter House Company Limited v The County Government of Kiambu was taxed at Kshs. Kshs. 1,588,219. 80/=. He obtained a certificate of taxation for this sum on 20 April, 2022.

4. By a letter dated 6 May 2022, the applicant demanded payment of the taxed amount from the County Government of Kiambu. The letter was duly served on 12 May, 2022 and the demand notice required the County Government to make payment within 14 days from the date of demand.

5. The demand for payment has not elicited any response. In the absence of any response, the applicant has concluded that the respondents have refused, ignored, or neglected to pay the taxed amount of 1,588,219. 80/=.

6. It is the applicant’s case that the respondents are respectively the authorised, accounting and Chief Executive Officers of the County Government of Kiambu and as such, they are under a public duty to ensure that the County Government of Kiambu fulfils its legal obligations.

7. On 20 February 2023, Mr Mararo, the learned counsel for the respondents informed the court that he had filed a replying affidavit opposing the application but there is none on record or on the Case Tracking System portal.

8. Nonetheless, at the hearing of the application, counsel informed the court that the respondents do not contest owing the applicant and have been seeking to settle the matter out of court. As a matter of fact, a provision for payment if this amount had been made in the County Government’s supplementary budget. He assured the court that the amount would be paid within twenty-one days from 20 February 2023.

9. As a result of the learned counsel for the respondents’ submissions, I suspended judgment for thirty days on the understanding that if that applicant was paid as promised by the respondents, there would be no need to render a judgment on the application. However, the respondents did not honour their promise and, therefore, the applicant’s application has to be considered on its merits.

10. One of the ways through which decrees or orders are enforced is, of course, execution or attachment. However, the Government is protected from such process of execution or other similar process in enforcement of decrees or orders by section 21 of the Government Proceedings Act, in particular, section 21(3) thereof. That section reads as follows:21. Satisfaction of orders against the Government1. 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.

11. It is apparent from subsection (4) that no execution or attachment or process in the nature thereof can be issued to enforce payment by the Government of any such money or costs. According to subsection (5) section 21 of the Act applies to the county governments in proceedings in which they are parties as much as it applies to the national government but with such modifications as are necessary. It follows that County Government of Kiambu is insulated from execution and attachment and, therefore, the only available route open to the applicant would have been to compel the respondents to perform their statutory duty under section 21(3) of the Act, and pay what has been decreed as due and owing to the applicant.

12. But as a prerequisite to performance of the public duty under section 21(1), the applicant must demonstrate that he applied for and was issued with a certificate of order against government to pay the sum in issue. This section is clear that:“… 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.”

13. There is, of course, a proviso that a separate certificate of order against government may be issued for costs, where, as in the instant application, costs are to be paid. Whatever the case, the application for and the issuance of the certificate of order against the Government is mandatory irrespective of whether the amount sought to be paid is the decretal amount only or it is the decretal amount and costs or it is made of costs only.

14. According to section 21(3) the certificate, in a way, provides the particulars of what ought to be paid in more specific terms leaving no ambiguity of the obligation the accounting officer is bound to discharge.

15. The certificate, according to section 21(2) is to be served upon the Attorney General, in the case of proceedings in which the national government is a party.

16. Of course the office of Attorney General does not exist in county governments but section 21(5) would imply that an office in the county government similar to that of the Attorney General or performs such functions as the Attorney General would perform would be the appropriate office to be served with the certificate of order against the Government. As it has been noted, this section is to the effect that section 21 of the Government Proceedings Act is applicable to county governments as much as it applies to the national government subject, of course, to such necessary modifications as may be necessary.

17. The equivalent of the office of the Attorney General in the county would be the office of legal affairs and, for purposes of service of the certificate of order against government, the head of such an office or his agent would be a proper officer to be served.

18. Of course, there would be nothing wrong in a decree holder serving the certificate upon the accounting officer referred to in section 21(1) of the Act but the Act is express that it is the Attorney General who may be served. In short, an application for enforcement of payment would not fail because the accounting officer was not served if it can be proved that his legal representative, the Attorney General, was served.

19. Turning back to the applicant’s application, there is no evidence, and neither has it been suggested that the applicant applied for and was issued with the certificate of order against the government in Nairobi High Court Judicial Review Application No. 262 of 2015. If the certificate was not issued, it is obvious that it could not have been served as required under section 21 (2) of the Government Proceedings Act. Consequently, there is no appropriate order upon which the relevant accounting officer in the County Government of Kiambu would have acted and performed his public duty with which he is charged under section 21(3) and paid the applicant.

20. I am minded that counsel for the respondent confirmed to court that indeed his clients are aware of the certificate of taxation and that they have been willing to settle and pay the applicant. If they had settled and paid, the matter would have ended there and there would be no need for this court to delve into the question whether a certificate of order against the government was extracted and served. But when they failed to pay and the applicant had to set in motion the proceedings for a mandamus order, the burden was on the applicant to ensure that he has complied with all the necessary prerequisites under the law before the order of mandamus can be granted. For reasons I have given, I am not satisfied that the applicant has discharged this burden.

21. In the ultimate, I find the applicant’s application to be premature or, to be precise, to be misconceived. It is hereby dismissed. I make no orders as to costs since the respondents have admitted that the applicant’s bill is yet to be settled. Orders accordingly.

SIGNED, DATED AND DELIVERED AT NAIROBI ON 13 OCTOBER 2023NGAAH JAIRUSJUDGE