[2022] KEHC 1684 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW DIVISION

MISC. APPLICATION NO. E071 OF 2021

REPUBLIC.........................................................................................................................................APPLICANT

-VERSUS-

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

CHIEF OFFICER FINANCE/COUNTY TREASURER NAIROBI CITY COUNTY....2ND RESPONDENT

-AND-

PROF TOM OJIENDA & ASSOCIATES ......................................................................................... EX PARTE

JUDGEMENT

1. The ex parte Applicant (hereinafter “the Applicant”) moved this court vide an application dated 7th June, 2021 seeking for ORDERS:

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

2. THAT the County Secretary, Chief Officer Finance/County Treasurer shall comply by paying the Applicant within seven (7) days the sum of Kshs. 88,785,630. 24 being the decretal sum and accrued interest in respect of High Court Misc. Civil Application No. 5 of 2017.

3. THAT the County Secretary, Chief Officer Finance/County Treasurer Nairobi City County shall in addition pay the Applicant further interest on the said sum of Kshs. 88,785,630. 24 at the rate of 14% p.a from the 19th February, 2020 until payment in full.

4. THAT in default, notice to show cause do issue against the County Secretary, 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 cost of this Application be provided for.

2. The application is founded on the grounds set out on the face therein, the Statutory Statement dated 11th May, 2021 and the Verifying Affidavit of Prof. Tom Odhiambo Ojienda SC sworn on even date. The main ground of the application is that the Applicant filed an Advocates-Client Bill of Costs dated 22nd December, 2015 which arose out of a judgment in Petition No. 486 of 2013, Nairobi Metropolitan PSV SACCOs Union v Nairobi City County & 3 Others which the Applicant represented the Respondents. That the said bill was taxed at Kshs. 87,258,000. 00 through the ruling delivered on 5th July, 2016 and a Certificate of Taxation issued on 8th February, 2017 the payment was never honoured by the Respondent.

3. Thereafter, the Applicant sought to have the Certificate of Taxation converted into a judgment and a decree dated 28th March, 2017 issued to that effect. Owing to the refusal to pay up the outstanding sums, the Applicant filed an application seeking for an order of mandamus to compel the Respondents herein to satisfy the decretal sum. However, through the judgment dated 17th January, 2019, the Honourable Justice Mativo found the application therein premature as the Applicant was yet to extract and serve the Respondents with a Certificate of Order under Section 21(1) of the Government Proceedings Act and had not yet served demand on the Respondents.

4. That the Applicant has since extracted the Certificate of Order dated 30th June, 2020 wherein the Respondent has been ordered to pay the Applicant a total sum of Kshs. 88,785,630. 24 and served it on the Respondents and despite several reminders, the Respondents have refused to settle the decretal sum to date necessitating the instant application. It was therefore urged that the application be allowed.

Responses

5. In response through Grounds of Opposition dated 16th July 2021, the 1st and 2nd Respondents contend that the application is premature, misconceived, lacks merit, frivolous and an abuse of the court process. It is urged that the Respondents are state officers with the City County Government of Nairobi within the meaning of Article 260 of the constitution and the Nairobi City County is a County Government established under Article 176 (1) of the constitution and that Article 6 of the constitution enshrines County Government as part of the Government of Kenya and therefore that the provisions of section 21 of the Government Proceedings Act are applicable to the county Government and the application thus fails to meet its tenets. Further, they contend that the documents annexed to the Supporting Affidavit were never served upon the Attorney General or the County Attorney contrary to Section 21(1) and (2) of the Government Proceedings Act neither was a demand for payment made.

6. They also argued that committal proceedings ought not to issue against a party who has not been a party to the alleged HC Misc. Cause No. 5 of 2016 and personally served by an order or decree. As such, they argued that the Applicant lacks a prima facie case against the Respondents. It was further their contention that the Public Finance Management Act No. 18 of 2012 does not allow and/or authorize the Respondents to process any payment that was not budgeted for in the financial year that requires adherence to the principles of public finance set out in Chapter 12 of the Constitution. They therefore urged that the application be dismissed with costs.

Parties Submissions

7. The Applicant filed written submissions dated 6th July, 2021 and 13th October, 2021 in support of the application. Counsel cited the case of Republic v County Secretary, Nairobi City County & Anor Ex parte Samson Masaba Munikah t/a Munikah & Co. Advocates (2019) eKLR where the court discussed the guiding principles for granting an order of mandamus. Counsel also cited the cases of Shah v Attorney General (No3) (1970) EA 543, Republic v County Secretary Migori County Government & Another (2018) eKLR, Jaribu Credit Traders Limited v Nairobi County Government (2018) eKLR and Republic v Kenya National Examination Council ex parte Gathenji & 9 Others (1997) eKLR for the proposition that an order of mandamus compels the performance of a public duty which is imposed on a person or body of person by a statute.

8. As to the question of who is the accounting officer of a county government, counsel cited the cases of Council of Governors & Others v The Senate (2015) eKLR, Soloh Worldwide Inter-enterprises v County Secretary Nairobi County and Another (2016) eKLR and Section 44 of the County Governments Act No. 17 of 2012 for the proposition that the person who has the overall financial obligations for the purpose of the affairs of the county government must be the county executive in charge of finance and unless he shows otherwise, he is the one under the obligation to pay funds in the capacity as the accounting officer. Lastly, that the lack of budgetary allocation cannot absolve the Respondents from its duty to pay the decretal sum as was discussed in the case of Republic v Principal Secretary, Ministry of Defence & Another ex parte David Gitau Njau & 9 Others (2018) eKLR. Accordingly, they urged that the application dated 7th June, 2021 is merited and should be allowed.

9. The Respondents on the other hand filed written submissions dated 5th November, 2021. On the issue whether matter is res judicata, counsel argued that the Applicant filed a similar application on 15th June, 2017 and the same was dismissed for lacking merit. To buttress his argument, counsel cited Section 7 of the Civil Procedure Act and the cases of John Florence Maritime Service & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others (2015) eKLR, Uhuru Highway Development Limited v Central Bank of Kenya & 2 Others (1996) eKLR and Republic v Baringo County Government & 2 Others Ex Parte KTK Advocates (2019) eKLR for the proposition that the issues herein have already been litigated upon hence the application res judicata.

10. On the issue whether an order of mandamus should be issued against the Respondents, counsel submitted that the Applicant has not demonstrated that he served a Certificate of Order upon the County Attorney in accordance with Section 21(2) of the Government Proceedings Act and Order 48, Rule 2 and Order 5 Rules 13 and 15 of the Civil Procedure Rules. Counsel also cited the cases of Kisya Investments Ltd v AG (2005) eKLR, Republic v County Secretary Migori County Government & Another (2019) eKLR, Newton Gikaru Githioni & Anor v AG/Public Trustee Nairobi HC JR 472 of 2014 for the proposition that an application seeking to compel the Government to satisfy a decree is a very elaborate procedure and before court can issue such an order, there must be proof that the provisions of the Government Proceedings Act have been complied with. Accordingly, they urged that the application be dismissed with costs.

Analysis and Determination

11. I have considered the application, affidavit evidence, the Grounds in Opposition and learned submission by counsel. 2 issues arise for determination;

i. Whether the application is res judicata.

ii. Whether the applicant has met the threshold for the grant of orders sought.

12. On whether the matter is res judicata, section 7 0f the Civil Procedure Act provides the appropriate answer. The section provides;

`` No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit in which such issues has been subsequently raised, and has been heard and finally decided by such court’’.

13. For the plea of res judicata to succeed, the matter must have been heard and determined by a court of competent jurisdiction and on merit. I am guided by the pronouncement of the Court of Appeal in Caneland Ltd and Others v Delphis Bank Civil Appeal No 20 of 2000where it stated:

“For res-judicata to arise the issue must have been heard and decided on merit otherwise the plea cannot be sustained “.

The respondents have raised the issue of res judicata in their submissions. The judgement alluded to is not annexed and neither is there any evidence that the same issues raised herein were the same ones litigated on in the earlier suit if at all. The plea of res judicata thus fails.

14. As regards the question whether the applicant has achieved the threshold for the grant of orders sought, its important to highlight the nature of the remedy of mandamus. The locus classica in this in our jurisdiction is the Court of appeal decision in Republic v Kenya National Examination council Ex Parte Gathenji and 9 others where the court stated;

The next issue we must deal with is this: What is the scope and efficacy of an ORDER OF MANDAMUS? Once again we turn to HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89. That learned treatise says:-

“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”

At paragraph 90 headed “the mandate” it is stated:

“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”

What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed…………..

15. It is not disputed that there is a decree in favour of the applicant and that there is a certificate of Taxation and a Certificate of order against Government in compliance with section 21 of the Government Proceedings Act.

16. The decree is against Nairobi City County one of the Counties established under Article 6 of the constitution and is recognized as a distinct level of Government by the Article. The Government Proceedings Act is thus applicable to it. Addressing this issue, Odunga J in R v Attorney General and Another ex parte Stephen Wanyee Roki [2016] eKLRstated;

‘’ 20. Although the provisions of Government Proceedings Act do not expressly refer to county governments, section 7of the sixth schedule to the constitution (Transition and Consequential Provision) provides that;

All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it to conformity with this constitution.

21. It follows that the provisions of the Government Proceedings Act, a legal instrument enacted before the effective date must be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the constitution. One such construction would be the reality that the Government is now at two levels and Article 189 (1) (a) of the constitution requires that the constitutional status and institutions of government at both the National and County levels be respected. In my view such respect cannot be achieved unless both levels of government are treated equally and one such area would be with respect to execution proceedings’’.

17. The Respondents are by dint of section 21 (3) of the Government proceedings Act which imposes a statutory duty on the accounting officer concerned to pay the sums specified in the certificate of order against the Government to the person entitled or to his advocate together with interest accruing there on.

18. Having so found, the next and only remaining question is whether there was service of the order requiring payment and whether there is compliance.

19. Annexture ‘’PTO 9’’ to the affidavit of Prof Tom Ojienda leaves no doubt as to the service of the certificate of order against Government and the demand to pay. Despite this service there is no evidence of the respondents having undertaken their statutory duty under section 21 (3) of the Government proceedings Act.

20. The question of who are the accounting officers of the Nairobi City County, a ready answer is found in the sentiments of Nyamweya J (as she then was) in JR. Miscellaneous Application N. 375 of 2018, Republic v The County Secretary Mombasa County Government and Chief Officer Finance/ County Treasurer, Mombasa County Government Ex Parte Veteran Phamceuticals Ltd whereshe stated;

“11. As regards who the accounting officers of the Nairobi City County are, section 44 of the County Government Act establishes the office of the County Secretary who is secretary to the County Executive Committee, and is answerable for the operations of the County Executive, and whose functions include being head of the county public service. Section 103 of the Public Finance Management Act also establishes the County Treasury comprising of the County Executive member of Finance, the Chief Officer and the departments of the County Treasury responsible for finance and fiscal matters.

12. Under section 103(3) of the Public Finance Management Act, the County Executive Committee Member for Finance is the head of Treasury and is thus the responsible for finance matters in the County. Therefore, both the 1st and 2nd Respondents are jointly responsible for the satisfaction of Court orders and decrees on payment of money owed by the Nairobi City County by virtue of their roles and functions.’’

21. In the premises and for reasons above stated, am satisfied that the Notice of Motion dated 7th June 2021 is meritable. I allow the same and make the following orders;

a. An order of mandamus be issued directed to the County secretary and Chief Officer Finance/County Treasurer, Nairobi County to pay the applicant herein the sum of Ksh 88,785,630. 24 being the decretal sum and accrued interest as per the Certificate of Order against the Government together with further interest accruing from the date of the Certificate of Order against Government.

b. The applicant shall have costs of this application.

DATED, SIGNEDAND DELIVERED AT NAIROBI 10TH DAY OF MARCH, 2022

A. K. NDUNG'U

JUDGE