[2017] KEHC 9262 (KLR)

REPUBLIC OF KENYA

IN THE HIGH OF KENYA AT NAIROBI

MILIMANI LAW COURTS

MISC. CIVIL APPLICATION NO. 123 OF 2017

REPUBLIC……………………………….…..….......................….APPLICANT

VERSUS

THE COUNTY SECRETARY NAIROBI CITY COUNTY...1ST RESPONDENT

CHIEF OFFICER, FINANCE/COUNTY

TREASURER, NAIROBI CITY COUNTY….....................2ND RESPONDENT

EX PARTE: - PROF. TOM OJIENDA & ASSOCIATES

RULING

1. This ruling revolves around two applications. In their application, the Respondents herein seek the following orders:

1) That the Application be certified as urgent and service be dispensed with in the first instance.

2) That this Honourable Court be pleased to stay execution of all the proceedings to enforce the Certificate of Taxation issued on 5th October 2016 and decree issued on the 14th March 2017 pending the hearing and determination of this application.

3) Thatthere be a stay of execution of the Certificate of Taxation dated 5th October 2016 against the Nairobi City County and all other consequential orders pending the filing hearing and determination of a reference against the Ruling and Taxation in the High Court Misc. Cause No. 3 of 2016.

4) Thatthe costs of this application be provided for.

2. The other application by the applicant herein seeks the following orders:

1. That an order of mandamus now be issued and the same be directed to the County Secretary, Nairobi City County and the Chief Officer, Finance/County Treasurer, Nairobi City County.

2. That the County Secretary, Nairobi City County and the Chief Officer, Finance/County Treasurer, Nairobi City County shall comply by paying the to the Applicant within 7 days the sum of Kshs. 76,312,500. 00/= being the decretal sum and accrued interests up to 16. 3. 2017 In respect of Misc. Application No. 2 of 2015.

3. That the County Secretary, Nairobi City County and the Chief Officer, Finance/County Treasurer, Nairobi City County shall in addition pay to the Applicant further interest on the said sum of Kshs. 76,312,500. 00/= at the rate of 14% from the 16. 3.2017 until payment in full.

4. That in default, notice to show cause do issue against the County Secretary, Nairobi City County and the Chief Officer, Finance/County Treasurer, Nairobi City County for them to show cause why they should not be cited for contempt of court.

5. That the costs of this Application be provided for.

3. Since the Respondents are seeking to stay the proceedings upon which the applicant’s application is premised, it is my view that it is prudent to deal with the Respondents’ application first. This must be so because if the Respondents’ application is granted, there would be no need to deal with the applicant’s application hence saving judicial time. On the other hand, if the applicant’s application was to be dealt with first, and assuming the prayers sought therein were to be granted, it would render the Respondents’ application still-born as the Respondents’ application is based on the applicant’s prayers not being granted.

4. According to the Respondents, the Nairobi City County instructed the Applicant herein to represent it in the High Court Judicial Review No. 109 of 2014 - Hon. Gideon Mbuvi Alias Sonko vs. Nairobi City County. It was averred that the applicant filed in Court on the 15th January 2016 the Advocate/Client Bill of Costs dated 13th December 2015 claiming the sum of Kenya Shillings Three Hundred and Sixty Four Million Seventy Thousand Seventy Hundred and Eighteen (Kshs. 363,079,718. 00) which said Advocate-Client bill of Costs was taxed on the 5th July 2016 at Kenya Shillings Seventy Five Million (Kshs. 75,000,000. 00) against the Nairobi City County Government and a Certificate of Taxation issued on the 12th October 2016 in the said sum. Thereafter, the Applicant filed a Notice of Motion dated 17th January 2017 under Certificate of urgency seeking judgment for the said taxed amount in the sum of Kenya Shillings Seventy Five Million (Kshs. 75,000,000. 00) which judgment was entered on the 30th January 2017 and decree issued.

5. It was the Respondents’ case that they only became aware of the matter when they were served with the a mention notice dated 16th March 2017 on the 22nd day of May 2017 coming up on the 24th May 2017 and obtained a copy of the application herein through their Advocates on record from the applicant.

6. According to the Respondents, the Nairobi City County was served with Advocate/Client Bill of Costs dated 13th December 2015 and delegated the same to an in-house Advocate to handle the matter on its behalf but the said in-house Advocate never advised the Nairobi City County Government about the proceedings and outcome of the Taxed Advocate/Client Bill of Costs. However the Respondents are dissatisfied with the Ruling and Reasons for Taxation dated 5th July 2016.

7. It was the Respondents’ case that they are Chief Officers of the Nairobi City County Government established under Article 176(1) of the Constitution of Kenya and is therefore a public entity within the meaning of Article 226 of Constitution of Kenya.

8. The Respondents averred that they are in danger of being condemned unheard due to failure by the in-house counsel to update them on the progress and outcome of the matter. They contended that the said Counsel even after participating in the Taxation proceedings failed to inform the Director of Legal Affairs of the outcome casting aspersions on complicity or otherwise on the reasons for not disclosing such a serious financial expenditure to the head of the department if at all.

9. It was the Respondents’ case that the ground under which their Application was sought constitutes sufficient reason that allows the Court to exercise unfettered discretion in determining this application in favour of the Respondents herein. They were however apprehensive that if the Orders sought herein are not granted the application herein will be rendered nugatory and the Nairobi City County Government forced to incur tax payers’ monies without any lawful justification. To them, the taxed amount is excessive in the circumstances and against the Advocates (Remuneration) (Amendment) Order, 2014. While appreciating that advocates are indeed entitled to remuneration as their only source of livelihood, they contended that the same must be reasonable to the professional work done. However, that remuneration ought not to be determined on the value of the subject matter merely mentioned in the pleadings, lest it leads to frivolous suits aimed at unjust enrichment.

10. They therefore prayed that the Court stays all the proceedings herein to avoid causing hardship or injustice to the Respondents and grants them time to challenge the decision of the Taxing Officer.

11. Based on legal advice, they averred that the grounds under which the application is sought constitutes sufficient reason that allows the Court to determine the application herein in favour of the Applicant. It was their view that no prejudice not compensatable by an award of costs would be suffered by the Applicant herein if the Orders sought herein are granted.

Applicant’s Response to the Respondents’ Case

12. In response to the Respondents’ application the Applicant averred that the Applicant represented the Respondents herein in the High Court Judicial Review No. 109 of 2014 - Hon. Gideon Mbuvi Alias Sonko vs. Nairobi City County. According to the applicant, he tried on various occasions to recover fees from its client, the Nairobi City County, but the same was not fruitful and thus sought to file an Advocate/Client Bill of costs to recover its rightful legal fees. Accordingly he filed a Bill of Cost on the 15th January, 2016 seeking from the Nairobi City County Kshs. 363,070,718 which Bill was taxed on the 5th July, 2016.

13. It was disclosed that both parties before the Deputy Registrar agreed to put in written submissions which the applicant did on the 25th January, 2016 whilst the Respondents herein put in their submissions on the 24th May, 2016. According to the applicant, both parties were heard and their submissions considered by the Honourable Deputy Registrar and in fact it was the Respondents’ suggestion in their submissions before the taxing master that the Bill of Cost dated 13th December, 2015 be taxed and allowed at Kshs. 76, 400,362/=.

14. It was deposed that in taxing of the Bill of Costs, the Deputy Registrar considered all the issues raised by each party and more so took into consideration the readiness of the County to pay Kshs. 76, 400,362/= and taking all factors into consideration whilst taxing, she taxed the same at Kshs. 75,000,000/=.

15. It was averred that after the Ruling on 5th July, 2016 by the Deputy Registrar awarding the Advocate Kshs. 75,000,000/= there was no objection and /or reference filed in the matter as per the provisions of Rule 11 (1) and (2) of the Advocates (Remuneration) Order and the applicant pursuant to section 51(2) of the Advocates Actmoved the court vide an application dated 17th January, 2017 to convert the certificate of costs dated 5th October, 2016 into a judgment/decree to enable them execute against the Respondents. The said application was duly served upon the Respondents and the Court always set hearing dates of the said application, which the Applicant served the various hearing notices upon the Respondents to appear.

16. According to the Applicant, the Respondents did appear before court and that the said judgment under Section 51(2) of the Advocates Act was entered in the presence of the Respondents Advocate one Mr. Murage and a decree was issued on the 14th March, 2017. However, as Nairobi City County is a government entity and execution cannot proceed against them as per the provision of section 21 of the Government Proceedings Act, the applicant proceeded to file an Application dated 16th March, 2017 for leave to be granted an order of Mandamus to compel the Respondents to pay the amounts owed which application was duly served upon the Respondents through its Director, Legal Affairs, on the 27th March, 2017 and consequently on the 2nd May, 2017 upon the Finance & Economic Planning Department. On 26th June, 2017 the Court granted leave and the Applicant was to put in their application for Mandamus to compel the Respondents to pay the said owed amounts in the presence of their counsel, Mr. Mugoye.

17. It was the applicant’s case that as the Applicant’s time to file for a reference has passed, this is a delaying tactic as the Respondents/Applicants do not want to pay the correctly awarded amounts to the Applicant/Respondent

18. The applicant was therefore dismayed at the averment in the supporting affidavit that the Respondents only became aware of the matter when they were served with a Mention Notice dated 16th May, 2017 to appear in court on the 24th May, 2017 yet the Respondents were served with every single Application and documentation with regards to the case.

19. It was the applicant’s case that the County should not blame their misfortune upon the Applicant and let the applicant suffer for their negligence to follow up on their matter. To him, the Respondents were duly aware of the said Ruling and the various applications before court but still did not attend. The Court was therefore urged not to grant the instant stay as it has been overtaken by events.

20. It was the applicant’s case that under the law for the Respondent/Applicant to be granted an order of stay of execution, the court considers the pros and cons of granting the said stay, the prima facie merits of the intended Appeal and whether it will succeed and relied on Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi [2014] eKLR.To the applicant, the Respondents/Applicants have no arguable appeal as they clearly indicated in their submissions they were ready and willing to pay Kshs. 76, 400,362/=;

21. The applicant disputed the Respondents’ contention that they were condemned unheard since they were served with all the required notices to appear in court, which they did and agreed that the Applicant should be paid Kshs. 75,000,000. The Applicant averred that it is not party to how the office of the County works and that an Advocate, one Mr Murage, duly appeared who in the applicant’s view was a representative of the Principal being Director Legal Services. Accordingly, they should not claim that they were unaware of the various applications before court.

22. It was further averred that the Respondents through their legal department have been aware of the Ruling delivered on 5th July, 2016 and did nothing in form of appeal before the High Court. This Court was therefore urged not to grant the stay and instead allow the Applicant to proceed with execution against the Respondents by way of Mandamus.

23. I have considered the issues raised in the instant application. The application is expressed to be brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 22 Rule 25 and Order 51 rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. Starting from Order 22 rule 25, the said provision provides that:

Where a suit is pending in any court against the holder of a decree of such court in the name of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided.

24. For this provision to apply, there must be two suits between say A and B. In one suit there must be a decree in favour of A against B. In the other suit, it must be B who is suing A. In this case, the Respondents are seeking stay of execution pending the filing, hearing and determination of the reference against the ruling and taxation in High Court Misc. Cause No. 4 of 2016. In other words the Respondents are yet to file their reference and hence there is no suit by the Respondents against the Applicant.

25. Judicial Review, it was held in Jotham Mulati Welamondi vs. The Electoral Commission of Kenya Bungoma H.C. Misc. Appl. No. 81 of 2002 [2002] 1 KLR 486, is a special procedure and as the Court is exercising neither a civil nor criminal jurisdiction in the strict sense of the word, the invocation of the provisions of section 3A of the Civil Procedure Act render the application wholly incompetent.

26. That leads me to the issue of the circumstances under which the Court can stay judicial review proceedings. Section 9(3) of the Law Reform Act, Cap 26 Laws of Kenya provides as hereunder:

In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

27. First that provision expressly applies to application in which a relief in the nature of an order of certiorari is sought which is not the case in the instant proceedings. Secondly, it applies where either there is an appeal or where the time for appealing has not lapsed. In this case even if the reference was to be equated to an appeal, there is no reference pending. Further, pursuant to the provisions of rule 11(1) of the Advocates (Remuneration) Order, if any party should object to the decision of the taxing officer he should within 14 days after the decision give notice of the items of the taxation to which he objects. It is true that rule 11(4) of the Advocates (Remuneration) Order gives the court power to enlarge time if the same lapses before a step needed to be done is done or taken. However, the decision whether or not to enlarge time is discretionary and this Curt cannot speculate as to how that discretion will be exercised assuming an application for extension of time will be made in the first place.

28. In my view, the only way in which the Respondents can avoid payment where there is a valid judgement of a Court of competent jurisdiction is to show that the judgement has been set aside on appeal or on review or that an order of stay has been issued suspending the execution of the said judgement. The order staying execution must however be made in the matter in which the judgement was issued. To that extent the Respondents’ application, brought as it is in a matter other than one in which the decree was issued, is in my view incompetent.

29. Apart from that the Respondents’ application, as discussed above is faced with several difficulties which need to be surmounted before a successful application may be argued. This is what Hewett, J described in Masefield Trading (K) Ltd. vs. Francis M Kibui [2001] 2 EA 431 as comedy of errors.

30. It is therefore my view that the Respondents’ application dated 29th June, 2017 fails and is dismissed.

31. With respect to the applicant’s application dated 28th June, 2017, in High Court Judicial Review Miscellaneous Application No. 44 of 2012 between the Republic vs. The Attorney General & Another ex parte James Alfred Koroso, this Court expressed itself as hereunder:

“…in the present case the ex parte applicant has no other option of realising the fruits of his judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that he has been awarded is realised. Unless something is done he will forever be left baby sitting his barren decree. This state of affairs cannot be allowed to prevail under our current Constitutional dispensation in light of the provisions of Article 48 of the Constitution which enjoins the State to ensure access to justice for all persons. Access to justice cannot be said to have been ensured when persons in whose favour judgements have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgement due to roadblocks placed on their paths by actions or inactions of public officers. Public offices, it must be remembered are held in trust for the people of Kenya and Public Officers must carry out their duties for the benefit of the people of the Republic of Kenya. To deny a citizen his/her lawful rights which have been decreed by a Court of competent jurisdiction is, in my view, unacceptable in a democratic society. Public officers must remember that under Article 129 of the Constitution executive authority derives from the people of Kenya and is to be exercised in accordance with the Constitution in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit…..The institution of judicial review proceedings in the nature of mandamus cannot be equated with execution proceedings. In seeking an order for mandamus the applicant is seeking, not relief against the Government, but to compel a Government official to do what the Government, through Parliament, has directed him to do. The relief sought is not “execution or attachment or process in the nature thereof”. It is not sought to make any person “individually liable for any order for any payment” but merely to oblige a Government officer to pay, out of the funds provided by Parliament, a debt held to be due by the High Court, in accordance with a duty cast upon him by Parliament. The fact that the Accounting Officer is not distinct from the State of which he is a servant does not necessarily mean that he cannot owe a duty to a subject as well as to the Government which he serves. Whereas it is true that he represents the Government, it does not follow that his duty is therefore confined to his Government employer. In mandamuscases it is recognised that when statutory duty is cast upon a Public Officer in his official capacity and the duty is owed not to the State but to the public any person having a sufficient legal interest in the performance of the duty may apply to the Courts for an order of mandamusto enforce it. In other words, mandamus is a remedy through which a public officer is compelled to do a duty imposed upon him by the law. It is in fact the State, the Republic, on whose behalf he undertakes his duties, that is compelling him, a servant, to do what he is under a duty, obliged to perform. Where therefore a public officer declines to perform the duty after the issuance of an order of mandamus, his/her action amounts to insubordination and contempt of Court hence an action may perfectly be commenced to have him cited for such. Such contempt proceedings are nolonger execution proceedings but are meant to show the Court’s displeasure at the failure by a servant of the state to comply with the directive of the Court given at the instance of the Republic, the employer of the concerned public officer and to uphold the dignity and authority of the court.”

32. Having disposed of the Respondents’ application there is no justifiable reason why the applicant’s application cannot succeed.

33. In the premises I issue an order of mandamus directed to the County Secretary and the Chief Officer, Finance/County Treasurer, Nairobi City County directing them to pay to the applicant herein the sum of Kshs 75,000,000. 00 with interests at the rate of 9% pursuant to rule 7 of the Advocates (Remuneration) Order from the date of the judgement till payment in full.

34. Orders accordingly.

Dated at Nairobi this 2nd day of October, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Arendi for Prof Ojienda for the ex parte applicant

Mr Kotonya for the Respondent

CA Ooko