[2022] KEHC 13719 (KLR)

Republic v County Secretary Nairobi City County; GK (Minor Suing through Next Friend & Grandmother FNK) (Interested Party/Exparte Applicant) (Judicial Review Application E016 of 2022) [2022] KEHC 13719 (KLR) (Judicial Review) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13719 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E016 of 2022

AK Ndung'u, J

October 13, 2022

Between

Republic

Applicant

and

County Secretary Nairobi City County

Respondent

and

GK (Minor Suing through Next Friend & Grandmother FNK)

Interested Party/Exparte Applicant

Judgment

1. The court in Civil Case No 5818 of 2008; GK (Minor Suing Through Next Friend and grandmother FNK) v City Council of Nairobi entered Judgment in favour of the ex parte applicant to the tune of Kshs 985,620. 58/= being the decree amount, further interest on the principal amount @12% from 9/7/19 to August 2, 2021 and further costs from July 9, 2019 to August 2, 2021. The respondent having failed to settle the decretal sum led to the applicant filing an application before this court seeking leave to apply for an order of Mandamus.

2. This court in its ruling dated February 17, 2022 granted the ex parte applicant leave to apply for an order of Mandamusto issue against the respondent herein. The court also directed for the substantive motion to be filed within 21 days.

3. The ex parte applicant is now before this court by way of the substantive notice of motion application filed under order 53 of the Civil Procedure Rulesand section 26 of the Law Reform Act. The motion seeks 2 primary prayers as follows;“Thatan order of Mandamusdo issue directed at the respondent, County Secretary, Nairobi County to settle the decretal sum in Nairobi CMCC No 5818/08 being Kshs 985,620. 66 with interest at court rates from August 2, 2021 till payment in full.Thatin default of compliance within 14 days from the date of the order, the respondent county secretary, Nairobi County to be committed to civil jail for 6 months and the County Commander, Nairobi County Police to assist in effecting the arrest and presentation to court.”

4. The application is supported by an affidavit sworn by FNK on March 3, 2022.

5. The respondent in defence has filed a replying affidavit sworn by Abwao Erick Odhiambo, the Acting County Solicitor of Nairobi City County Government on April 4, 2022. In the affidavit Mr Odhiambo urges that the application before this honourable court is fatally defective, incompetent and an abuse of court process as the same was filed and served outside the mandatory twenty-one (21) days as is stipulated by the law and this honourable court and no leave of the court was sought.

6. The application is said to have been filed on March 14, 2022 and served on March 16, 2022 thus offending the provisions of order 53 rule 3 of the Civil Procedure Rules,2010.

7. It is also the respondent’s case that the republic ought not to have been named as the applicant in the application for leave as the aggrieved party only becomes theex parte applicant after leave has been granted. The said leave according to the respondent should not have been granted as the law clearly stipulates the manner in which a litigant is to approach the court in judicial review applications for leave.

8. The respondent further urges that under section 103(3) of the Act, the County Executive Committee Member for Finance is the head of treasury, and is thus the one responsible for finance matters in the county. No evidence according to the respondent has been produced showing that the procedure as provided under section 21 of the Government Proceedings Act was observed.

9. The respondent also contends that execution proceedings against a government or public authority under the Government Proceedings Act can only be as against the accounting officer or chief officer of the said government or authority.

10. The ex parte applicant in a further affidavit sworn by Cosmas Ngala, advocate for the ex parte applicant on April 25, 2022 contends that on 10th and March 11, 2022 there were challenges in filing documents as the court network was down and that his clerk only managed to file the application on March 14, 2022 after the network normalized. Further that the respondent had been served with the decree, judgement, and all the relevant documents apart from the certificate of costs against the county government in JR Misc. 280 of 2019 which was struck out with leave to file a fresh application.

Parties submissions 11. The application was canvased by way of written submissions and in response to the respondent’s allegations that the county secretary was not the correct party to satisfy the decree the ex parte applicant argues that the County Secretary is the head of the County Public Service and also the Secretary to the County executive committee. Further that the orders sought are administrative in nature, and not financial and as the secretary to the county executive committee, the respondent is the best office to ensure that the orders of satisfaction of a court decree are realized.

12. The ex parte applicant also submitted that In JR Misc 280 of 2019, which was struck out on the May 13, 2021 with leave to file fresh application, the respondent had been served with all the documents save for the certificate of order against the county government which has been added in these proceedings.

13. The respondent in the written submissions contends that the limit of twenty-one (21) days as contained under order53 rule 3 of the Civil Procedure Rules 2010is mandatory and effectively this honourable court adopted that period in its orders made on February 17, 2022 and that the law requires that in the event of expiry of time donated by the rules or given by the court, the applicant should apply for leave of the court for extension of time.

Determination 14. I have considered the pleadings filed by both parties and 3 issues emerge for determination;i.Whether the notice of motion before this court is incompetent & fatally defective as the ex parteapplicant has failed to seek leave before this court to file out time?ii.Whether the applicant has met the threshold for the grant of the judicial review order sought.iii.Who bears the costs of the application?

Whether the motion before this court is incompetent 15. Order 53 rule 3 (1) of the Civil Procedure Rules, states as follows;“When leave has been granted to apply for an order of Mandamus, prohibition or Certiorari, the application shall be made within twenty-one days by notice of motion to the high court, and there shall, unless the judge granting leave otherwise directed, be at least eight clear days between service of the notice of motion and the day named therein for the hearing."

16. The ex parte applicant in response to not filing the instant application that is the subject of this judgment on time contends that between March 10, 2022 and March 11, 2022 the online court portal was not working and as such his court clerk was unable to file the said application on time and she was only able to do so on March 14, 2022. Learned counsel implored this honourable court to adopt the overriding objective principle as captured by section 1A, 1B, 3A of the Civil Procedure Act and article 159 of the Constitutionof Kenya,2010, which encourage courts to endeavor to do substantive justice without undue regard to technical and procedural issues.

17. On the extent of inherent power of the court the case ofKPLC v Benzuene Holdings Limited T/A Wyco Paints[2016] was cited where the court quoted Halsbury laws of England, 4th Edition, Vol. 37 Paragraph 14 as follows;“In sum it may be said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined as being the reserve or fund of power, a residual source of power which the court may draw upon as necessary whenever it is just or equitable to do so. In particular, to ensure the observance of the due process of law to prevent improper vexation or oppression to do justice between the parties and to secure a fair trial between them.”

18. The instant application according to learned counsel for the respondent was filed out of time and without leave as was held in the cases of Republic v Embu County Governmentex parteMountain Slopes Commercial Services LimitedCivil Application No 61 of 2017 andRepublic v Cabinet Secretary, Information Communication & Technology & 3othersex parteCelestine Okuta &others.

19. I have applied my mind to the rival positions taken by the parties. No doubt the application was filed out of time and thus runs foul of order 53 rule 3. Am quick to note that this is an application for the enforcement of a decree of the court. It is a second attempt at enforcement of the decree the first one having come a cropper for failure to annex a certificate of order against the government as required by section 21 of the Government Proceedings Act. The respondent, as is apparent from the record, is quick to latch on any available straw to avoid settling the decree despite no denial of its existence. This is demonstrated by the discernable lack of intent to obey the decree even after the earlier motion was struck out.

20. The nature of the application at hand and the short delay in the filing of the application, the plausible explanation of the court’s system failure which is not controverted and the need to do justice to the decree holder who has held onto an empty decree for years militates for the summoning of the court’s wide powers under article 159 of the Constitutionto do justice to the parties without undue regard to technicalities. Am alive to the fact that article 159 did not do away with rules of procedure. Am however persuaded that it would be a travesty of justice of monumental proportions to strike out the application hearing for the technical infraction complained about. This would be tantamount to rewarding the respondent for their failure that has led the parties to this court.

21. The inherent powers of the court would find no better application than in this case and in its circumstances. The words of the court inKPLC v Benzuene Holdings Limited T/A Wyco Paints[2016] where the court quoted Halsbury laws of England, 4th Edition, Vol 37 Paragraph 14 as follows ring true;“In sum it may be said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined as being the reserve or fund of power, a residual source of power which the court may draw upon as necessary whenever it is just or equitable to do so. In particular to ensure the observance of the due process of law to prevent improper vexation or oppression to do justice between the parties and to secure a fair trial between them.”

22. I find and hold that the application is properly before the court and should be determined on its merits.

Whether the applicant has met the threshold for the grant of the judicial review order sought 23. There is uncontroverted evidence that the court in Civil Case No 5818 of 2008; GK (Minor Suing Through Next Friend and grandmother FNK) v City Council of Nairobi entered Judgment in favour of theex parte applicant to the tune of Kshs 985,620. 58/=. The decree and a certificate of order against the government clearly setting out the sum and interest is shown to have been served on the respondent. A legal duty to pay the claim is established.

24. The courts are reluctant to direct a writ of mandamus against executive officers of a government unless some specific act or thing which the law requires to be done has been omitted. In our instant suit a public duty to pay the decretal sum as decreed by the court has been flouted. No plausible explanation is given for the omission. The applicant has shown that the duty to pay should lie.

25. The respondent has not denied the existence of the decree. In addition to the attack on the application based on the legalities I have addressed above, the respondent avers that the respondent is non-suited since the County Executive Member of Finance is the head of the County Treasury and thus responsible for financial matters in the county. The respondent also contends that execution proceedings against a government or public authority under the Government Proceedings Act can only be as against the accounting officer or chief officer of the said government or authority.

26. The application thus faces headwinds when it comes to the entity sued. The issue of who is the accounting officer in a County Government was resolved by the Supreme Court in Council of Governors & others v The Senate PetitionNo 413 of 2014 [2015] eKLR where the court expressed itself as follows:“The petitioners have also sought the interpretation of the term ‘Accounting Officer’. In that regard, article 226 of the Constitutionprovides;1. Act of parliament shall provide for -a.the keeping of financial records and the auditing of accounts of all governments and other public entities, and prescribe other measures for securing efficient and transparent fiscal management; andb.The designation of an accounting officer in every public entity at the national and county level of government2. The accounting officer of a national public entity is accountable to the national assembly for its financial management, and the accounting officer of a county public entity is accountable to the county assembly for its financial management.Pursuant to this provision, parliament enacted the Public Finance Management Act. The appointment and designation of a County Government Accounting Officer is provided for under Section 148 of that Act, as follows;1. A County Executive Committee member for finance shall, except as otherwise provided by law, in writing designate accounting officers to be responsible for managing the finances of the county government entities as is specified in the designation.2. Except as otherwise stated in other legislation, the person responsible for the administration of a county government entity, shall be the accounting officer responsible for managing the finances of that entity.It therefore follows that “an accounting officer” for a County Government entity is the person so appointed and designated as such by the County Executive Committee Member for Finance under section 148 of the Public Finance Management Act. Indeed, section 148 (3) of the Public Finance Management Act mandates the County Executive Committee Member for Finance to ensure that each County government entity has an accounting officer as provided for under article 226(2) of the Constitution.As regards the accounting officer for the County Assembly, Section 148(4) of the Public Finance Management Act provides that; “The clerk of the County Assembly shall be the accounting officer of the County Assembly”.Having found as we have, it follows that the question posed by the petitioners as to whether the County Governor is an Accounting Officer, must be answered in the negative. He is not an Accounting Officer and we have said why.” 27. Granted the applicant has named the County Secretary as the respondent in these proceedings. Certainly, this is not the Accounting officer envisaged in law. The County Secretary is non-suited in this matter as the responsible officer is the County Executive Committee Member for Finance unless such officer has appointed another officer to take charge of the docket. I agree with Odunga J (as he then was), in his decision in Soloh Worldwide Inter-Enterprises v County Secretary Nairobi County & another [2016] eKLR where he stated;“It therefore follows that the person who has the overall financial obligation for the purposes of the affairs of a County Government must be the County Executive in charge of finance and unless he shows otherwise, he is the one under obligation to pay funds, in the capacity as the accounting officer. It must always be remembered that a judicial review application is neither a criminal case nor a civil suit hence the application ought to be brought against the person who is bound to comply with the orders sought therein. In an application for mandamus where orders are sought to compel the satisfaction of a decree against a County Government, the proper person to be a respondent ought to be the said County Executive in charge of finance unless he discloses that he had in fact appointed an accounting officer for that purpose………..’’

28. Section 21 (3) of the Government Proceedings Act on the other hand provides: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.It is clear from the provision that it is the Accounting officer for the Government department concerned who shall pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest. The Accounting Officer at a County Government is the Executive Committee Member for finance.

29. Sadly, for reason above stated, the application for a second time falls on the wayside for a legal infraction that this court cannot afford to overlook, an infraction that cannot be ignored without serious prejudice to the office and officer who ought to have been made a party in these proceedings, indeed the proper party. He would have been condemned unheard. I hasten to add though that the trend taking root in County Governments, and indeed even in the National Government, where payment of decrees has more often than not been subject of enforcement through orders of mandamus must be checked. The conduct where lawful decrees by courts are circumvented through laborious post judgement litigation laced with technicalities with accounting officers playing hide and seek with decree holders must be deprecated. Where applicable, this court will not hesitate to employ fully the dictates of article 159 of the Constitution and the overriding objectives of the rules of procedure to ensure substantive justice.

30. The application herein fails. It is struck out with the applicant at liberty to move against the Accounting officer.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OCTOBER, 2022. .....................................A. K. NDUNG'UJUDGE