[2025] KEHC 4568 (KLR)

Republic v County Secretary Nyamira County & 2 others; Ayako (Exparte Applicant) (Judicial Review E006 of 2024) [2025] KEHC 4568 (KLR) (3 April 2025) (Ruling)

Neutral citation: [2025] KEHC 4568 (KLR)

Republic of Kenya

In the High Court at Nyamira

Judicial Review E006 of 2024

WA Okwany, J

April 3, 2025

Between

Republic

Applicant

and

The County Secretary Nyamira County

1st Respondent

The Chief Officer, Financing and Accounting Services Nyamira County

2nd Respondent

The Chief Officer, Economic Planning, Resource Mobilization and ICT Nyamira County

3rd Respondent

and

Hebon Kerongo Ayako

Exparte Applicant

Ruling

1. This ruling is in respect to the Chamber Summons Application dated 5th November 2024 wherein the exparte Applicants seeks leave to apply for:-1. An Order of Mandamus to issue against the Respondents herein namely the County Secretary, Chief Officer, Finance and Accounting Services Nyamira County and CEC Finance and Accounting Services Nyamira County to compel them to proceed and pay out the decretal sum of Kshs. 324,870. 75/= and Kshs. 161,143/= only, being General Damages and costs in Keroka Principal Magistrate’s Court Case No. E045 of 2021: Hesbon Kerongo Ayako vs. County Government of Nyamira and Another, whose judgment was delivered on the 25th day of January 2023. 2.Thatthe court be pleased to set a timeline and/or duration within which the Respondents will settle the Decretal Sum with interest accruing until the date of payment.3. That the Applicant be at liberty to apply to this Court for all necessary and/or consequent orders that this honourable Court may deem fit and just to grant in the circumstances.4. Costs of the Application be provided for.

2. The Application is supported by the exparte Applicant’s verifying affidavit and is premised on the grounds on the face of the Application.

3. The Respondent opposed the Application through the Replying Affidavit of its Chief Officer Finance, Economic Planning, Resource Mobilization and ICT, Dr. CPA Asenath Maobe, who avers that there is another matter pending before this court, being Miscellaneous Application No. E063 of 2024 County Government of Nyamira vs. Hesbon Kerongo Ayako & Another wherein the Respondents had, on 24th October 2024, obtained interim orders for stay of execution pending the hearing and determination of a declaratory suit before the lower court. She states that in view of the existence of the interim orders of stay of execution, there is no justification in proceeding with a parallel judicial review application. According to the Respondents’ deponent, the instant application is a deliberate attempt to mislead the Court into granting leave which may lead to the possibility of conflicting orders being issued by the same court.

4. The Application was canvassed by way of written submissions which I have considered.

5. I have considered the pleadings filed herein and the parties’ rival submissions. I find that the main issue for my determination is whether the exparte Applicant has made out a case for the granting of leave to apply for an order of mandamus.

Analysis and Determination 6. Section 21 of the Government Proceedings Act stipulates as follows on enforcement of judgment/orders against the government in civil proceedings as follows: -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.

7. In the case of Republic vs. Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) eKLR Githua J. explained the manner in which a successful party can execute a judgment/decree against a government entity as follows: -“In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21 (1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon. Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon. Attorney General, Section 21 (3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon.”

8. Order 53 Rule 1 of the Civil Procedure Rules stipulates as follows on Judicial Review Proceedings: -Order 53 - Applications For Judicial Review1. Applications for mandamus, prohibition and certiorari to be made only with leave [Order 53, rule 1]1. No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule

9. The requirement for leave to file Judicial Review Proceedings against Government entities was explained in the case of Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 where Waki J. (as he then was), held thus: -“The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by, and to remove the uncertainty in which public busy bodies with misguided or trivial complaints or administrative error officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review if it were actually pending even though misconceived… Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.

10. In the present case, it was not disputed that the exparte Applicant had obtained a judgement/decree in Keroka Principal Magistrate’s Court Case No. E045 of 2021 for the sum of Kshs. 324,870. 75/= together with costs of Kshs. 161,143/= and interest thereon until payment in full. It is trite that an Application for leave calls for the Court to only consider whether an Applicant has an arguable case. The substance and merits of the arguments of the parties is never considered at this stage. In Uwe Meixner & Another vs. Attorney General [2005] eKLR, the Court of Appeal at Mombasa held thus: -“The leave of the court is a prerequisite to making a substantive application for judicial review. The purpose of the leave is to filter out frivolous applications. The granting of leave or otherwise involves an exercise of judicial discretion.The test to be applied in deciding whether or not to grant leave is whether the applicant has an arguable case. In Njuguna v Ministry of Agriculture [2001] 1 E.A. 184, this Court said at page 186 paragraph g:.“… leave should be granted, if on the material available the court considers without going into the matter in depth that there is an arguable case for granting leave”.

11. A perusal of the record reveals that the exparte Applicant duly served the Respondents with the Decree, Certificate of Costs and a Certificate of Satisfaction Order dated 14th October 2024. I am therefore satisfied that the Applicant has made out a prima facie case for the granting of leave to apply for orders of mandamus to compel the Respondents to settle the judgment debt.

12. The Respondents, on their part, referred to an ongoing declaratory suit before the lower court and alleged that orders for stay of execution had been granted pending the hearing of the said declaratory suit. I however note that the Respondents did not attach the pleadings of the said declaratory suit or the alleged order of stay to these proceedings for this court’s consideration. Be that as it may, I find that the Respondent’s claim on the existence of a declaratory suit cannot bar the exparte Applicant from pursuing the settlement of his decree through the Judicial Review process.

13. It must be appreciated that as a lawful decree holder, the exparte Applicant cannot be stopped from taking steps to ensure that he enjoys the fruits of his judgment. It is not disputed that the Respondents have an obligation to satisfy the judgment decree held by the Applicant. This position is buttressed by the determination of Majanja J. in Republic vs. Town Clerk of Webuye County Council & Another HCCC 448 of 2006 where it was held thus: -“...a decree holder’s right to enjoy fruits of his judgment must not be thwarted. When faced with such a scenario the Court should adopt an interpretation that favours enforcement and as far as possible secures accrued rights. My reasoning is underpinned by the values of the Constitution particularized in Article 10, the obligation of the court to do justice to the parties and to do so without delay under Article 159 (2) (a) & (b) and the Applicant’s right of access to justice protected under Article 48 of the Constitution.

14. For the reasons that I have stated in this ruling, I find that the instant application is merited and I therefore allow it in the following terms: -i.The Applicant is herein granted leave to institute Judicial Review proceedings against the Respondents herein namely the County Secretary, Chief Officer, Finance and Accounting Services Nyamira County and CEC Finance and Accounting Services Nyamira County for an order of Mandamus to compel them to proceed and pay out the decretal sum of Kshs. 324,870. 75/= and Kshs. 161,143 only, being General Damages and costs in Keroka Principal Magistrate’s Court Case No. E045 of 2021: Hesbon Kerongo Ayako vs. County Government of Nyamira and Another, whose judgment was delivered on the 25th day of January 2023. ii.Costs shall abide the outcome of the substantive Application.

15. It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA VIA MICROSOFT TEAMS THIS 3RD DAY OF APRIL 2025. W. A. OKWANYJUDGE