[2019] KEHC 12477 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

JUDICIAL REVIEW NO.5 OF 2018

IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW FOR ORDERS OF MANDAMUS

AND

IN THE MATTER OF THE GOVERNMENT PROCEEDINGS ACT SECTION 21 (4)

AND

IN THE MATTER OF ORDER 22 AND 29 OF THE CIVIL PROCEDURE CAP 21

AND

IN THE MATTER OF EXECUTION OF A DECRETAL BALANCE FOR KSHS.6, 298, 442. 24

AND

IN THE MATTER OF ORDER 53 (1) CIVIL PROCEDURE RULES

BETWEEN

PHILIP OTIENO OPONDO ................................................................. EX-PARTE APPLICANT

VERSUS

THE COUNTY SECRETARY, HOMA BAY COUNTY GOVERNMENT.. 1ST RESPONDENT

THE CHIEF OFFICER FINANCE, HOMA BAY COUNTY........................2ND RESPONDENT

RULING

1. The Notice of Motion dated 9th October 2018 is brought under Order 53 of the Civil Procedure Rules which provides for applications for judicial review orders of mandamus, prohibition or certiorari.

It is under the said provision that the ex-parte applicant, PHILIP OTIENO OPONDO, seeks an order of mandamus against the COUNTY SECRETARY and the CHIEF FINANCE OFFICER (first and second respondent) of the COUNTY GOVERNMENT OF HOMA BAY, to compel them to honour the decree of the court in Homa Bay CMCC No.53 of 2017 issued in favour of AMEJATIN CONSTRUCTION COMPANY LIMITED against the County Government of Homa Bay for the sum of Kshs.10, 298,442/24 together with interest and costs.

In a supporting affidavit dated 9th October 2018, the applicant avers that the County Government made a payment of Kshs.4 million but has failed or refused to pay the outstanding balance of Kshs.6, 298,442/24 cts. He therefore prays for an order from this court to compel the County Government through the specified officers to pay and clear the outstanding balance of the entire decretal amount.

2. Although the applicant is not the actual judgment creditor, he comes to this court in his capacity as a director of Amejatin Construction Company Limited but without any documentary evidence to establish his directorship or authority from the company to act on its behalf in this matter. It is instructive to note that a limited liability company is a legal person with powers to sue and be sued. It is a separate legal entity from individuals who form it and ought to have been the applicant in this matter or be included as an interested party.

Be that as it may, despite being served with the application and the supporting affidavit, the respondents did not file any grounds of opposition or any affidavit in reply. As it were, the application was canvassed by written submissions without any effective opposition from the respondents save the contention in their submissions through the firm of NYAUKE & COMPANY ADVOCATES to the effect that they faced and experienced myriad challenges over the past two years which have completely incapacitated them in the settlement of the decretal amount under the terms agreed on in the consent dated 16th March 2018.

3. The said consent is the annexure marked “C003” contained in the documents filed herein by the applicant. It was prompted by the issuance of a notice to show cause against the first respondent. The judgment creditor thus acknowledged receipt of Kshs.2 million from the County Government as part payment of the decretal sum and in compliance with the notice to show cause. The County Government in turn undertook to liquidate the outstanding balance of the decretal amount in equal monthly instalments of Kshs.500, 000/= w.e.f. April 2018, and in default, the judgment creditor be at liberty to apply for execution.

It was herein admitted by the applicant that so far a total of Kshs.4 million has been paid by the County Government but the balance of the decretal amount being Kshs.6, 298,442/24 cts remains outstanding.

It is this outstanding balance that gave rise to the present application for mandamus on the basis that under the Government Proceedings Act, property belonging to a County Government cannot be attached. This clearly implied that the judgment creditor had the intention of executing the decree by way of attachment and sale of the judgment debtor’s property.

4. The applicant’s annexture marked “C002” indicates that the Company Judgment debtor from the very beginning opted to enforce its decree by taking out execution proceedings against the County Government. The chosen mode of execution was that provided under Order 22 Rule 18 of the Civil Procedure Rules which was previously Order XXI Rule 18.

In that regard, the execution was aimed at the responsible officer of the County Government (i.e. the County Secretary) to the extent that a Notice to show cause was issued against him. This resulted in the very important consent entered between the judgment creditor and the judgment debtor County Government on 16th March 2018.

The Notice to show cause was thus lifted on payment by the County Government of part of the decretal amount with an undertaking to pay the remaining balance in equal monthly instalments. The default clause indicated that the execution would be revisited without further reference to the County Government.

5. This present application is clearly a result of breach of the terms of the consent by the County Government. The reasons for the breach were indicated in the respondent’s submissions as being a myriad of challenges faced by the County Government over the past two years which made it in capable of meeting its financial obligations. However, much as these reasons may elicit sympathy from any quarter, they did not provide sufficient grounds to excuse the County Government’s failure to discharge its indebtedness to the judgment creditor who was thus entitled to seek legal remedy to enforce its judgment.

Any reasonable person would have expected the judgment creditor to proceed against the County Government in the same fashion as it had done in the first instance i.e. by adopting a mode of execution aimed at the County Government through the person of its County Secretary or Finance Officer. This would have been compatible with the terms of the consent entered between the parties on 16th March 2018.

6. However, the judgment creditor opted to enforce its decree by seeking an order of mandamus against the respondents as the responsible officers of the County Government of Homa Bay.

A failure to comply with such an order would be invariably followed by drastic results and so would the failure to discharge the decretal amount in the process of execution against a person. It is just a matter of which of the two available remedies would be most convenient and effective. In terms of the consent, the appropriate remedy would not be an order of mandamus but execution proceedings against any of the responsible officers of the County Government.

This method worked magically by prevailing upon the judgment debtor to pay part of the decretal amount before later renegading on the terms of the consent and prompting the judgment creditor to seek an order of mandamus for reasons that the Government Proceedings Act prohibits any form of execution against the Government and/or its officers.

7. As was stated in REPUBLIC –VS- KENYA NATIONAL EXAMINATIONS COUNCIL EX-PARTE GATHENGI & OTHERS CIVIL APPEAL NO.266 OF 1996, the order of mandamus is of a most extensive remedial nature and is in the form of a command directed to any person requiring him to do some particular thing which appertains to his office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and will accordingly issue to the end that justice may be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing that right. It may also issue in cases where, although there is any alternative legal remedy, yet that mode of redress is less covenant, beneficial and effectual.

8. It would therefore follow that inasmuch as the judgment creditor was required to re-start the execution proceedings against the responsible officer of the County Government, it was not precluded from enforcing the decree by way of an order of mandamus. However, the circumstances of this case favoured the execution of the decree in the manner initially adopted by the judgment creditor rather than by way of an order of mandamus. More so, considering that the decree sought to be executed was a monetary decree arising from a claim of specific performance granted by the court in favour of the judgment creditor against the judgment debtor County Government of Homa Bay, which was thus ordered to specifically perform the contract between itself and the judgment creditor by paying a balance of Kshs.7, 960,091/60 cts to the plaintiff/judgment creditor.

9. Specific performance is a court ordered remedy that requires precise fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate (see, Black’s Law Dictionary 10th Edition). It enforces the execution of a contract according to its terms. Disobedience of the decree arising from the remedy would attract contempt proceedings against the guilty party.

Similarly, disobedience of an order of mandamus would attract contempt proceedings.

Since both remedies attract more or less similar drastic consequences, the present application was clearly unnecessary.

Further, it is doubtful whether the Government Proceedings Act (Cap 40

Laws of Kenya) offers immunity to a County Government against

execution proceedings of any nature.

Section 21 (4s) of the Act appears to offer protection only to the Government of Kenya and not the devolved units known as County Governments created under the Constitution of Kenya, 2010.

10. The provision provides that:-

“Save as provided in this section, no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payments by the Government of any money or costs, and no person shall be individually liable under any order for the payment of the Government or any Government department or any officer of the Government as such, of any money or costs.”

There is no mention of the County Government in the provision and therefore, the word“Government” must necessarily refer to the National Government of Kenya which exercises the ultimate sovereign power in the Country.

In Black’s Law Dictionary, a government is defined “inter alia” as an organization through which a body of people exercises political authority, the machinery by which sovereign power is expressed.

The constitution refers to two levels of Government i.e. the National and County Governments but does not define the word “Government”.

11. Under Section 6of the County Governments Act, 2012, a County Government is described as a body corporate with perpetual succession. As such, it has the powers to sue and be sued. There is nothing in the Act showing that the Government Proceedings Act applies to County Governments and there is no definition of the word “Government” in the Government Proceedings Act. An Officer of the government under the said Government Proceedings Act includes the President, the Vice President, a Minister, an Assistant Minister and any servant of the Government. A County Governor, Deputy County Governor, or any officer of the County is not included in the definition thereby connoting that the Government Proceedings Act is meant to apply to the National Government and not the County Government.

It would therefore follow that the applicant herein operated under the wrong notion that the judgment debtor County Government was protected against execution proceedings by the Government Proceedings act which this court thinks does not apply to this case for reasons aforementioned. (See K. KIPLAGAT KIMAIYO –VS- COUNTY GOVERNMENT OF ELGEYO MARAKWET (2016) e KLR, JAMES MUNGAI IRUNGU –VS- COUNTY GOVERNMENT OF TRANS-NZOIA (2015) e KLR).

12. In the end result, this application is lacking in merit and is hereby dismissed with each party bearing their own costs.

Ordered accordingly.

J.R. KARANJAH

JUDGE

09. 05. 2019

[Read and signed this 9th day of May, 2019]