[2014] KEHC 6874 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JR MISC CIVIL APPLICATION NO 88B OF 2012

IN THE MATTER OF: AN APPLICATION FOR LEAVE TO APPLY OFAN ORDER OF MANDAMUS

AND

IN THE MATTER OF: SECTION 59 OF THE URBAN AREAS ANDCITIES ACT NO.13 OF 2011 AND SECTION

44(1) OF THE COUNTY GOVERNMENTS ACTNO.17 OF 2012 AND ALL THE ENABLINGPROVISIONS OF THE LAW

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

-VERSUS-

1. INTERIM COUNTY SECRETARY NAIROBI COUNTY..............1ST RESPONDENT

2. INTERIM COUNTYTREASURERNAIROBI COUNTY.............2ND RESPONDENT

EX-PARTE: NJAGI WANJERU PRACTICING AS NJAGI WANJERU & COMPANY ADVOCATES

RULING

By a Notice of Motion dated 1st November, 2013, the ex parte applicant herein, Njagi Wanjeru Practicing as Njagi Wanjeru & Company Advocates, seeks the following orders:

1. THAT an order of committal to prison do issue against the interim county secretary and the interim county treasurer of the Nairobi City County for such period as this Honourable Court may deem fit and just for disobeying the decree herein dated 10th December 2012 and accordingly warrants of arrest do issue against the said respondents.

2. THAT the warrants of arrest against the respondents be enforced with the assistance of the O.C.P.D, Central Police Station, Nairobi.

The application is supported a supporting sworn by the applicant on 1st November, 2013.

According to the applicant, the court record clearly shows that the respondents’ advocate has made several unfulfilled promises to have the decretal sums settled by reason whereof this matter was adjourned many times. According to him, as a matter of fact the Nairobi City County just like its predecessor the defunct City Council of Nairobi has no demonstrably fair official policy on the payment of such claims such that some advocates are tellingly paid their legal fees promptly while others like the applicant are not even while armed with valid certificates of taxation.

In his view, the presently outstanding decretal sum stands at Kshs 12,934,392. 00. made up as follows:

Accrued interest:-

a)Kshs 863,633 x 14/100 x 71/12 months (from 1. 2.2007 - 1. 11. 2013 ...Kshs 715,376. 00

b) Decretal sum underLimb 1(c) ...................................................Kshs 322,705. 00

c) Principal decretal sum underLimb 1(a) ...........................................Kshs 7,110,762. 00

Accrued interest:-

Kshs 7,110,762 x 14/100 x 75/12 months (from 16. 8.2007-16. 10. 2013) .....

Kshs 6,221,916. 000

Total ......................Kshs.15,234,392. 00

Less the sum of Kshs.2,300. 00 remitted in October 2011

Towards the decreed costs of Kshs.7,110,762. 00. ............................Kshs. 2,300,000. 00

Outstanding balance ..............................................................................Kshs.12,934,392. 00

To the applicant, the refusal and/or failure by the respondents to comply with the subject decree bespeaks the usual official insensitivity and disregard for the rule of law.

In his submissions, the applicant submitted that an order of mandamus was granted in terms of the decree dated 10th December 2012 and despite promises to settle the same the City Council of Nairobi failed to settle the same.

Following the repeal of Cap 265 which vide section 263A obligated the Town Clerk to cause to be settled such debts as the subject decretal sums, the current officers charged with that duty are the respondents by dint of section 59 of the Urban Areas and Cities Act No. 13 of 2011 and section 44(1) of the County Governments Act No. 17 of 2012.

In the applicant’s view, the principle of the Rule of Law demands that the respondents be punished for failing to cause to be satisfied the decretal sums in compliance with the order of mandamus aforesaid. In support of his submissions the applicant relied on Republic vs. The Town Clerk City Council of Nairobi Nairobi High Court Miscellaneous Application No. 82 of 2008.

From the record, there is a decree given on 10th December 2012 issued on 10th December 2012.

The applicant contends that this decree has not been fully satisfied and that the sum due thereon is Kshs. 12,934,392. 00.

The application was however not opposed.

In my considered view, Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying with court orders the honourable thing to do is to come back to court and explain the difficulties faced by the need to comply with the order. Once a Court order is made in a suit the same is valid unless set aside on review or on appeal. In Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim, J (as he then was) stated:

“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void”.

This position was confirmed by the Court of Appeal in Refrigerator & Kitchen Utensils Ltd. vs. Gulabchand Popatlal Shah & Others Civil Application No. Nai. 39 of 1990. In Wildlife Lodges Ltd vs. County Council of Narok and Another [2005] 2 EA 344 (HCK) the Court expressed itself thus:

“It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a Court of competent jurisdiction to obey it until that order was discharged, and disobedience of such an order would, as a general rule, result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt. A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it…It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed…If there is a misapprehension in the minds of the defendants as to the reasonable meaning of the order, then the expectation of them is that they would have made an application to the court for the resolution of any misunderstanding and this would have been the lawful course…In cases of alleged contempt, the breach for which the alleged contemnor is cited must not only be precisely defined but also proved to the standard which is higher than proof on a balance of probabilities but not as high as proof beyond reasonable doubt…The inherent social limitations afflicting most people in a developing country such as Kenya have the tendency to restrict access to the modern institutions of governance, and more particularly to the judiciary which is professionally run, on the basis of complex procedures and rules of law. Yet, this same Judiciary is generally viewed as the impartial purveyor of justice, and the guarantor of an even playing ground for all, a perception which ought to be strengthened, through genuine respect for the courts of justice, and through compliance with their orders. Consistent obedience to court orders is required, and parties should not take it upon themselves to decide on their own which court orders are to be obeyed and which ones overlooked, in the supposition that this oversight will not impede the process of justice…Justice dictates even-handedness between the claims of parties; and if it be the case that the plaintiff/applicant has not been accorded a level playing ground for the realisation of its economic activities, a matter that of course can only be established through evidence in the main suit, then the court ought to provide relief, by applying the established principles of law, one of these being the law of contempt…An ex parte order by the court is a valid order like any other and to obey orders of the court is to obey orders made both ex parte and inter partes since the Court by section 60 of the Constitution is the repository of unlimited first instance jurisdiction, and in this capacity it may make ex parte orders where, after a careful and impartial consideration, it is convinced that issuance of such an order is just and equitable. There is nothing potentially oppressive in an ex parte order, since such an order stands open to be set aside by simple application, before the very same court… Where a party considers anex parte order to cause him undue hardship, simple application will create an opportunity for an appropriate variation to be effected thereto; and therefore there will be no excuse for a party to disobey a court order merely on the grounds that it had been madeex parte and this argument will not avail either the first or the second defendant”.

With respect to the orders of mandamus and the consequences arising therefrom, in High Court Judicial Review Miscellaneous Application No. 44 of 2012 between the Republic vs. The Attorney General & Another ex parte James Alfred Kosoro, I expressed myself as hereunder:

“…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.”

As the present application was not opposed I have no justifiable reason why the application cannot succeed.

Accordingly, I direct the Respondents herein to appear before this Court to show cause why they should not be committed for contempt of Court.

The ex parte applicant will have the costs of this these proceedings.

Dated at Nairobi this 28th February, 2014

G V ODUNGA

JUDGE

Delivered in the presence of Mr Njage for the Applicant.