[2023] KEHC 23330 (KLR)

Republic v County Secretary, Nairobi City County & another; Teleposta Pension Scheme Trustees Registered (Exparte) (Application E151 of 2021) [2023] KEHC 23330 (KLR) (Judicial Review) (13 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23330 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E151 of 2021

J Ngaah, J

October 13, 2023

Between

Republic

Applicant

and

County Secretary, Nairobi City County

1st Respondent

Nairobi City County

2nd Respondent

and

Teleposta Pension Scheme Trustees Registered

Exparte

Judgment

1. The application before court is the applicant’s notice of motion dated 10 January 2023 expressed to be brought under Order 53 Rule 3(1) of the Civil Procedure Rules.

2. The motion seeks one primary prayer of mandamus which is framed as follows: ““1. An order of mandamus directed to the County secretary, Nairobi City County to comply by paying to the applicant within 21 days of the order of the court the sum of ksh 7,632,904 as at 29th July, 2022 together with interest as awarded by the court in ELC no 130 of 2010-Telposta Pension Scheme Registered Trustees versus City Council of Nairobi and in default a notice to show cause do(sic) issue against the County Secretary, Nairobi City County why they should not be cited for contempt of court.”

3. The applicant has also sought for an order on costs.

4. The application is based on a statutory statement dated 26 September 2021 and an affidavit sworn on even date by Mr. Peter K. Rotich who has described himself in the affidavit as an administrator and trust secretary of the applicant.

5. It is the applicant’s case that by a judgment dated 25 June 2020 rendered in the Environment and Land Court, being ELC no 113 of 2021 the applicant was awarded costs of ksh 7,632,904. A certificate of taxation dated 29 July 2021 was issued.

6. On 3 August 2021 the applicant wrote to the 1st respondent asking for payment of the amount.

7. On 19 October 2022 the applicant wrote to the 1st respondent and the office of the Attorney General, forwarding a certificate of order against government. The applicant’s letters did not elicit any response.

8. According to the applicant, the 1st respondent is the accounting officer of the 2nd respondent and is bound to settle the decretal amount as stated in the certificate of order against government. But to date the decree has not been settled hence the instant application.

9. Mr. Abwao Erick Odhiambo swore a replying affidavit opposing the application. Mr. Odhimabo says that he is the County solicitor of Nairobi City County. He does not dispute that the applicant was awarded costs in a suit in the Environment and Land Court as claimed in the affidavit sworn on behalf of the applicant.

10. However, the applicant has not complied with Section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules. Due to this non-compliance, the applicant cannot be paid. According to the respondents, the application is premature.

11. Besides the replying affidavit, the respondents also filed a notice of preliminary objection based on the same grounds of non-compliance with Section 21 of the Government Proceedings Act. They have also urged that, the 1st respondent is wrongly sued because the reliefs sought are outside the scope of the 1st respondent’s office. Joined of the 1st respondent is contrary to section 103 of the Public Finance Management Act, no 18 of 2012. The duties of the 1st respondent are provided for in section 44 of the County Government Act, 2012.

12. In a further affidavit filed by the applicant in response to the respondent’s replying affidavit Stephen Kipkorir Bundotich, the learned counsel for the applicant swore, inter alia:“That we have since managed to obtain a copy of the order against the government dated 27th July 2022”.

13. What the applicant has not stated, however, is whether the certificate of order against the government was brought to the attention of the responsible officer in accordance with section 21 (1) of the Government Proceedings Act. This section reads as follows21. Satisfaction of orders against the Government(1)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.(Emphasis added).

14. It is apparent from section 21(1) that, it is a mandatory requirement that before a decree holder is paid on any decree in civil proceeding to which the government is a party, he must, first obtain a certificate of order against the government. The certificate is in a prescribed form and generally contains the details of the payment to be made.

15. There is evidence that the applicant obtained this order long after the certificate of taxation was issued. The certificate of taxation was issued on 29 July 2021 and the certificate of order against the government was issued on 27 July 2022, almost a year later. Thus, the certificate was duly obtained.

16. Subsection (2) says that it is the Attorney-General General who may be served with the certificate of order against the Government once it has been issued. The reference to the Attorney General is, no doubt, with respect to those proceedings to which the national government is a party.

17. Such an office is not found in the 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. This section is to the effect that section 21 of the Government Proceedings Act is as much applicable to county governments as it is to the national government subject, of course, to such necessary modifications as may be necessary.

18. 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.

19. 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.

20. Turning back to the applicant’s application, the applicant’s wrote to the county secretary vide a letter dated 3 August 2021. There is a stamp on the face of the letter showing that the letter was received in the “legal affairs department civil litigation section.” It could be that it is in the office of the county secretary that this department is domiciled; at least, the respondents have not denied that it is.

21. I would not, therefore, have had any problem with the office that received the letter were it not for the fact that it was a letter that was served purporting to forward, not the certificate of order against the government but, a certificate of taxation.

22. In its pertinent part, the letter reads as follows:“We act for the plaintiff in the above suit.Find forwarded herewith the certificate of taxation for settlement. Kindly remit the taxed costs of ksh 7,632,904 to our below account:......................................We trust it will not be necessary for our client to commence proceedings for an order of mandamus and await your early response so that we can close on this matter.Yours faithfully”.

23. There is no evidence, and neither has it been suggested, even in the applicant’s further affidavit that the certificate of order against the government was served.

24. That being the case, I would agree with the respondents that the applicant’s application is premature. It is premature because the accounting officer who would otherwise be compelled to perform the public duty with which he is tasked under section 21 (1) of the Government Proceedings Act cannot to be so compelled if the certificate of order against government, the basis upon which he ought to make the payment, has not been brought to his attention. If the accounting officer is not aware of the requisite certificate, he cannot be said to have declined to comply with it as to as to invite this Honourable Court to grant the order of mandamus.

25. For the foregoing reasons, I dismiss the applicant’s application. Considering that it has been admitted that the certificate of costs remains unsettled, I make no order as to costs. It is so ordered.

SIGNED, DATED AND DELIVERED ON 13 OCTOBER 2023. NGAAH JAIRUSJUDGE