[2022] KEHC 16299 (KLR)

Republic v Koriko, County Executive Member for Finance & another; Waterman Drilling Africa Ltd (Exparte) (Miscellaneous Civil Application E002 of 2022) [2022] KEHC 16299 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16299 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Miscellaneous Civil Application E002 of 2022

KW Kiarie, J

December 15, 2022

Between

Republic

Applicant

and

Nicholas Obuya Koriko, County Executive Member for Finance

1st Respondent

County Government of Homa Bay

2nd Respondent

and

Waterman Drilling Africa Ltd

Exparte

Judgment

1. The applicant came to court by way of notice of motion dated March 15, 2022 under order 53 rule 3 of the Civil Procedure Rules, 2010. The applicant is seeking the following orders:a.The judicial review order ofmandamus do issue to compel:-i.Nicholas Obuya Koriko, the County Executive Member responsible for finance; andii.The County Government of Homa Bay to pay to the applicant the sum of Kshs 12,838984. 50/- as at December 10, 2021 and as specified in the certificate of order against the County Government of Homa Bay, being the outstanding judgment sum, costs and interest as at the date of the said certificate of order plus any further and additional interest accruing on the decree dated November 3, 2021, until payment of the entire decretal debt in Homa Bay Chief Magistrates court, Civil Suit No E61 of 2021, shall be made in full.b.Costs of this application be provided for.

2. The application is premised on the following grounds:i.Leave to apply for judicial review order of mandamus was applied for and issued as prescribed by the law and the applicable rules on the March 10, 2022. ii.On November 3, 2021, the Homa Bay Principal Magistrate’s court entered judgment in favour of the ex parte applicant and also awarded costs of the proceedings together with interests to her, against the County Government of Homa Bay.iii.A notice of entry of judgment was served and a decree was subsequently extracted on December 20, 2021. iv.Both the notice of entry of judgment and the decree have been served on the County Government of Homa Bay and the County Executive Committee member responsible for Finance at the County Government of Homa Bay and on the Controller of Budget of the Republic of Kenya.v.To determine the costs payable, the applicant filed a party and party bill of costs on November 24, 2021 for taxation. The same was served on the County Government of Homa Bay.vi.The party and party bill of costs was taxed on December 8, 2021 against the 2nd respondent in the sum of Kshs 269,054/- and a certificate of costs was thereafter issued in the said sum of Kshs 269, 054 and the same was served on the County Government of Homa Bay.vii.A certificate of order against the government was thereafter applied for and issued on December 10, 2021 and the same was served upon the County Government of Homa Bay.viii.The County Government of Homa Bay is indebted to the ex parte applicant in the sum of Kshs 12, 838,984. 50 as per the fore-stated certificate of order against the County Government of Homa Bay, as at the date of the order, but interest continues to accrue on the decree as specified therein.ix.Interest continues to accrue on the outstanding decretal debt, both on the judgment sum and on the costs as assessed from December 10, 2021, at court rates of 14% per annum, until payment shall be made in full of the entire decretal debt as awarded in the judgment and ought to be taken into account.x.The County Government of Homa Bay is therefore indebted to the ex-parte applicant in respect of the judgment sum, taxed costs together with interest in Civil Case No E61 of 2021 before the Principal Magistrates Court in Homa Bay.xi.The ex-parte applicant was pare-qualified way back in 2014/2015, applied for a tender that was advertised and competitively won and thereafter lawfully rendered satisfactory services to the County Government of Homa Bay by drilling and equipping boreholes which are currently being enjoyed by the people of Homa Bay, yet theex parte applicant is yet to be paid and is being subjected to painful and costly litigation.xii.Part payment was made for such services but the bulk of such bills to date remain unpaid and there is no explanation and or reason for such non-payment of the invoices, even after litigation to recover the same were commenced.xiii.The non-payment of bills has led the ex parte applicant to complain to various agencies, including to the Controller of Budget, pleading and seeking for help. The 2nd respondent continues I refusal to settle the decree, in contempt of court.xiv.It is a requirement of law, both in the Constitution and applicable statues that bills incurred by the Government whether at the national or County Government level be settled on time as specified in the various contract agreements to avoid accumulation of interest and other charges, which the respondents have failed and or refused to do, even after a decree was issued by the court after a painful, lengthy and a costly litigation process.xv.Failure to make payment by the county government for the services which the ex-parte service provider, and serves only to accumulate arrears and shed the government in bad light.xvi.That the 1st and 2nd respondents, in failing to make payments, even after litigation, are in a serious breach of the principles of public finance as is provided for under article 201 of the Constitutionand a violation of the laws of this country as enacted in both the County Government Act and thePublic Finance management Act, 2012. xvii.The 1st respondent, as the County Executive Member responsible for finance has both the statutory and legal mandate to settle debts of the County Government of Homa Bay.xviii.The County Government of Homa Bay has failed, refused and neglected to pay to the ex parte applicant the decretal debt as per the certificate of order against the county government amounting to Kshs 12,838,984. 50/-.xix.The actions of the county government of Homa Bay and its officers, including the 1st respondent amounts to contempt of court, and offends the provisions of article 47 of the Constitutionof Kenya.xx.The actions of the County Government of Homa Bay and the 1st respondent, by refusing to settle the decretal debt, violates the law, section 7(2) (j) of the Fair Administration Action Act, 2015 which guarantees the ex-parte applicant as expeditious, reasonable and efficient administrative action.xxi.The ex parte applicant has been kept out of the fruits of her labour and from results of painful and expensive litigation after the court entered judgment and issued the order for costs and interest in her favour and since the payable cots were taxed and ascertained.xxii.The ex parte applicant has no alternative remedy of realizing the fruits of the judgment and decree in her favour, as well as the order for costs and interest and the resultant costs as were taxed, as shown in the certificate or order against the County Government of Homa Bay.xxiii.Unless the orders sought are granted, the ex-parte applicant will forever remain without a remedy and the court judgment and order would be worthless, while orders of the court are never issued in vain.xxiv.If the orders sought are granted, the law shall be complied with and the rule of law shall be observed and the respondents stands to suffer no prejudice as they shall only be made to perform a public duty clearly spelt out in the law.xxv.Respondents are aware of the court judgment and that they have severally been served with the court decree and the notice to pay but the respondent’s officials have refused, neglected and or declined to comply with the courts decree.xxvi.The respondents sought to be compelled by the now sought for order of mandamus are in contempt of court and are in flagrantly in contempt of the court orders, and the decretal debt continues to attract interest and thus pile up.xxvii.If courts are to perform their duties and functions effectively ad remain true to the spirit which they are sacredly entrusted with, the dignity and authority of the courts has to be respected and protected at all costs, by compliance with court orders, and not in breach otherwise the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and a civilized life in the society.xxviii.It just and equitable to grant the orders sought so as to ensure compliance is for this is the purpose that court are entrusted with the extraordinary power of compelling the performance of a public duty and of punishing those who indulge in acts whether inside or outside courts which tend to undermine their authority and bring them in disrepute and disrespect by scandalizing them and obstructing them from discharging their duties.xxix.When the court exercises this power, grants an order of mandamus and compels performance of a public duty as an obligation against the respondents, it will be doing so to uphold the majesty of the law and of the administration of justice, hence the orders sought are well deserved.xxx.The foundation of judiciary which is the trust and confidence of the people in its ability to deliver fearless and impartial justice and to ensure that orders it issues are complied with, the orders sought ought to be granted, otherwise, the court decree which has been issued in favour of the ex parte applicant will not be worth the effort the parties has put in the proceedings.xxxi.Continued failure to comply with the orders of the court on the part of the respondents, is an act that weakens the foundation of justice itself and will tend to create disaffection and disrespect for the authority of the court by creating distrust in its workings and the edifice of the judicial system will get eroded.xxxii.It is essential for the maintenance of the rule of law and in order that the authority and the dignity of courts is upheld at all times by compelling compliance with lawful court decrees and orders like the kind which the ex-parte applicant now holds against the County Government of Homa Bay.xxxiii.The courts should not condone deliberate disobedience court decree and should not shy away from its responsibility to deal firmly with proved contemnors, and the only remedy now available Is for the orders or mandamus now sought, since 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.xxxiv.The ex-parte applicant is only after payment of lawful dues for services rendered which has been outstanding since 2015. xxxv.It is the duty of the High court not to condone deliberate dis obedience of court orders nor waiver from its responsibility to deal decisively and firmly with contemnors.xxxvi.Courts do not, and ought not to be seen to make orders in vain, otherwise the court would be exposed to ridicule, and no agency of the constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.xxxvii.A court order is binding on the party against whom it is addressed and until set aside remain valid and is to be complied with. Article 159(1) of the Constitution provides that judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by order under the constitution.xxxviii.Under article 10(1) of the Constitution the national values and principles of governance in the article bind all state organs, state officers, public officers and all persons whenever any of them (a) applies or interprets the Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions.xxxix.Under clause (2)(a) of the same article the national values and principles of governance include the rule of law and it is as is a crime to unlawfully and internationally to disobey a court order and this type of contempt of court is party of a broader offence, which can take many forms, but the essence of which lies in violating the dignity, repute or authority of the court.xl.The rule of law – founding value of the Constitution – ‘requires that the dignity and authority of the courts, as well as their capacity to carry out their functions, should always be maintained, hence the need to grant the order of mandamus as sought.xli.The justice of the matters raised dictates that the orders be granted so as to meet the ends of justice and to prevent continued violation of the applicant’s rights under the decree which has crystalized.xlii.There is a lacuna with respect to enforcement of remedied provided under the construction or Acts of Parliament, and decrees awarded by the court or if, through the procedure provided under an Act of Parliament, and since the ex-parte applicant as an aggrieved party is left with no alternative but to invoke the jurisdiction of court to compel the respondent to comply with lawful court decree.xliii.The court has jurisdiction to adopt such a procedure, as urged in these proceedings, as would effectually give meaningful relief to the ex parte applicant as a party aggrieved, in exercise of the inherent powers granted to the court by section 3A of the Civil Procedure Act to grant such orders that meets the ends of justice and avoid abuse of the process of court.

3. The respondent opposed the application on the following grounds:a.That applicants had obtained judgment against the respondents without the defendant being served with pleadings in this matter.b.That it is thus necessary to have the application in the lower court matter handled and dealt with before this matter is heard.c.That the matters involves public funds which the constitution mandates all Kenyans to protect and ensure the same is used prudently.d.That it is necessary to have the same defended and the correct figure paid to ensure that public funds is not wasted.

4. Mandamus is a discretionary remedy which the court must base on evidence and sound legal principles before pronouncing it in favour of the applicant. The applicant must satisfy some eight conditions that were enumerated in the case of Republic vs National Employment Authority & 3 others Ex-parte Middle East Consultancy Services Limited [2018] eKLR as follows:(i)There must be a public legal duty to act;(ii)The duty must be owed to the applicants;(iii)There must be a clear right to the performance of that duty, meaning that:a)The applicants have satisfied all conditions precedent; andb)There must have been:I.A prior demand for performance;II.A reasonable time to comply with the demand, unless there was outright refusal; andIII.An express refusal, or an implied refusal through unreasonable delay;(iv)No other adequate remedy is available to the applicants;(v)The order sought must be of some practical value or effect;(vi)There is no equitable bar to the relief sought;(vii)On a balance of convenience, mandamus should lie.

5. There was a judgment in favour of the applicant. It was argued by the respondents that there is appending application in the lower court to set aside the judgment. If what has transpired in this application is anything to go by, it would appear that the respondents are not keen to conclude the alleged application said to be pending before the lower court. This is a very simple application which has dragged on courtesy of the respondents.

6. The ex parte applicant has demonstrated that he has given the respondent reasonable time to comply and satisfy the decree. However, the respondents have failed to comply. I am satisfied that all the eight conditions have been met by the applicant. I therefore grant the orders sought.

DELIVERED AND SIGNED AT HOMA BAY THIS 15TH DAY OF DECEMBER, 2022KIARIE WAWERU KIARIEJUDGE.