[2023] KEHC 27449 (KLR)

Republic v Kiambu County Government; Jessee Kariuki & Co Advocates (Exparte Applicant) (Judicial Review E003, E004, E005, E006 & E007 of 2023 (Consolidated)) [2023] KEHC 27449 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27449 (KLR)

Republic of Kenya

In the High Court at Kiambu

Judicial Review E003, E004, E005, E006 & E007 of 2023 (Consolidated)

DO Chepkwony, J

December 14, 2023

Between

Republic

Applicant

and

Kiambu County Government

Respondent

and

Jessee Kariuki & Co Advocates

Exparte Applicant

Ruling

1. Vide a Chamber Summons application dated 14th December, 2022, the Exparte Applicant sought for and obtained to file for an order Mandamus to compel the County Secretary, Kiambu County Government to pay and or cause to pay the certificate of taxed costs of Kshs.150,208,188. 00.

2. Upon obtaining such leave, the Exparte Applicant filed a Notice of Motion Application dated 3rd March, 2023 under Sections 1A,1B and 3A, all of the Civil Procedure Act, Order 10 Rule (11), and 22 Order 25 both of the Civil Procedure Rules and Sections 8 and 9 both of the Law Reform Act.

3. The Application seeks the following orders:-a.Spent.b.THAT an Order of MANDAMUS do issue against the County Secretary Kiambu County Government to pay the Exparte Applicant the taxed amounts as Ordered and Decreed by the Honourable court on 10th February, 2019 on the diverse sums together with all accrued interest on the taxed amount from the date of judgment of this court was entered in default of which execution to issue against him.

4. The Application is based on the grounds set out on its face and the Supporting Affidavit of Jessee Kariuki sworn on 3rd March, 2023, which grounds are as follows:-a.THAT the instant proceedings pertain to a decision by the Deputy Registrar of the High Court sitting at Kiambu on the 10" February, 2019 where it was ordered and decreed that;i.The Respondent to pay the Applicant as per the applicant's bill of costs.b.THAT the Ex parte Applicant is aggrieved by the Respondent's inaction in paying or causing to be paid the taxed costs to the Applicant herein to date.c.THAT the Ex parte Applicant, despite requesting and seeking compliance from the Respondent herein via numerous emails exchanged calling for the issuance of cheques to settle the taxed costs amount, the same has gone unattended thus the resultant application before this Honourable Court.d.THAT the Ex parte Applicant has therefore timeously moved to this Honourable Court seeking to secure its fundamental rights and freedoms, and to uphold the sanctity and integrity of the Court process and the values under Articles 10, 159 and 129 of the Constitution of Kenya, 2010. e.THAT the requisite leave to seek judicial Review has already been sought and the Honourable Court has allowed the same.

5. The Respondent has opposed the Application through Grounds of Opposition dated 16th June, 2023 on the following grounds;a.THAT, the application herein against the Respondent is made in bad faith and is therefore frivolous, vexatious and an abuse of the court process.b.THAT the Respondent herein has not refused or neglected to satisfy and settle the certificate of cost in question and contends that any liability or expenditure incurred against the County government can only be made from monies provided to it by the National Government to be able to settle its outstanding debt, including the Applicant's claim.c.THAT, the National Government through the Senate is having discussions on the revenue allocation and revenue sharing formula to all respective counties including the Respondent herein, and Parliament has not provided any monies or adequate funds for the Respondent to settle any claims, including the Applicant's.d.THAT, the satisfaction of such certificate of costs are deemed to be expenditure by Parliament and must be justified in law, and the Respondent can only be accountable for what it has received from the National government.e.THAT, the Applicant's claims have been factored in the Respondent's budget for the financial year 2023/2024 and the same shall be settled once monies have been released by the National Treasury.f.THAT, the Respondents have not disregarded to pay the decretal sum and have every intention of complying, but seek for more time to do so.g.THAT the instant application filed and pleaded against the Respondent is frivolous, vexatious and otherwise an abuse of the court process.

6. The Application was canvassed by way of written submissions which were filed by the Exparte Applicant on 22nd March, 2023 which the court has taken note of together with the authorities cited therein.

Analysis and Determination 7. I have considered the Notice of Motion application dated 3rd March, 2023 and the affidavits sworn by either party in support and against the prayers being sought. I find the issue for determination being whether the prayer being sought is merited.

8. It is trite law that any execution against the government should be done through judicial review proceedings, which is the procedure laid down under Order 53 of the Civil Procedure Rules.

9. It is also trite law that for the application to be tenable, it should be made after a Certificate of Order against the Government has been served upon the government in compliance with Section 21 of the Government Proceedings Act. In the case of Republic –vs- County Government of Vihiga Ex parte Global Exhibitions Incorporated Ltd [2021] eKLR, Musyoka J. stated as follows:-“A party wishing to realize the fruits of a Judgment or Decree against the government must obtain a Certificate of Order against the Government. The Government pays against the certificate of order against it. It is a critical accounting instrument for the purpose of Government finances and accounts. The centrality of the certificate of order against government, with respect to enforcement of money decrees against the government, whether at the national or at the county level, has been the subject of pronouncement by the courts.”Section 21 provides as follows:-“[21]. 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 (incl.uding 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.”

10. The wordings of Section 21 of the Government Proceedings Act are made in clear and mandatory terms that a Certificate of Order must be issued for execution against the Government to proceed. In the case of Republic –vs- Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR, the court stated:-“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.”

11. This was also the position in the case of Republic –vs- County Secretary Migori County Government & Another [2019] eKLR, where the Court said:“[11].I need not re-emphasize the need for strict compliance with Section 21 of the Act being the law of the land. In this matter I can gather from the record that a Decree and a Certificate of Costs in the suit was drawn and issued. I did not set my eyes on any Certificate of Order. There is a specific procedure on how the Certificate of Order required under the Act is obtained. The procedure is contained in Order 29 of the Civil Procedure Rules. Under Rule 3 thereof the application is made to the Deputy Registrar in the High Court or to the court in the subordinate court. The format of the Certificate of Order is provided in Appendix A Form No. 22 of the Civil Procedure Rules. Form No. 23 provides the format for a Certificate of Costs in the event it is separately issued.

[12].Once a party obtains the Certificate of Order and the Certificate of Costs, in the event the Certificate of Costs is obtained separately, together with the Decree, then such a party must satisfy the Court of service of those documents upon the party named in the Certificates. In this case there is neither evidence of issuance of the Certificates nor service thereof on the Respondents or their Advocates.”

12. In this case, although the Exparte Applicant has correctly followed the procedure laid down under Order 53 of the Civil Procedure Rules in bringing this application, there is no evidence of Certificate of Order against the Government having issued and served it. Therefore, the court cannot proceed with the application as the execution process against the Government in this case is irregular and cannot stand.

13. In the circumstances, the court finds that the orders sought herein cannot be granted and consequently the Notice of Motion Application dated 10th March, 2023 is hereby struck out.

14. This order to apply to Judicial Review Case Nos.E003/2023, E004/2023, , E005/2023, E006/2023 and E007/2023. It is so ordered.

RULING DELIVERED, DATED AND SIGNED AT KIAMBU THIS ...14TH... DAY OF……DECEMBER………, 2023. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Macharia holding brief for Mr. Kariuki for the ApplicantCourt Assistant - Martin