[2023] KEHC 23379 (KLR)

Republic v Meru County Service Board & 2 others; Mbogo & Muriuki Advocates (Exparte Applicant) (Judicial Review E003 of 2021) [2023] KEHC 23379 (KLR) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23379 (KLR)

Republic of Kenya

In the High Court at Meru

Judicial Review E003 of 2021

TW Cherere, J

October 5, 2023

Between

Republic

Applicant

and

Meru County Service Board

1st Respondent

The Chairman, Meru County Service Board

2nd Respondent

The Secretary, Meru County Service Board

3rd Respondent

and

Mbogo & Muriuki Advocates

Exparte Applicant

Ruling

1. Before this Court is the exparte Applicant’s motion dated 21st June,2021 filed on even date under Section 8 and 9 of the Law Reform Act, Order 53 rule 2,3 and 4 of the Civil Procedure Rules and Section 68(1) of the Fair Administrative Act in which the exparte Applicant seeks orders That:1. An Order of Mandamus do issue compelling the Respondents to forthwith and without any delay pay or cause to be paid KES. 5,390,111. 68 together with costs and interest to satisfy the decree in High Court Mis. Appl. No. 004 OF 20222. That the said payment be made in full forthwith and in default, the 1st Respondent’s Chairman (2nd Respondent) and the Secretary (3rd Respondent) be cited and committed to civil jail for six (6 ) months for contempt of court

2. The motion is supported by grounds on its face and by a supporting affidavit sworn on 21st June, 2021 by Ken Muriuki, a managing partner of the exparte Applicant. He avers that the exparte Applicant’s Bill of Costs was taxed in High Court Miscellaneous Application No. 29 of 2022 and subsequently judgment was on 22nd May, 2023 entered in favour of the exparte Applicant as against the 1st Respondent in Misc Civil Case E004 of 2023 for KES. 5,390,111,68 (Five Million, Three Hundred Ninety Thousand, One Hundred Eleven and Sixty-Eight Cents) together with costs and interest.

3. Annexed to the affidavit is the Certificate of Costs dated 12th April, 2023, copy of decree dated 08th June, 2023, Certificate for Order against the 1st Respondent, demand notice dated 22nd May, 2023 all duly served on 12th June, 2023 as demonstrated by two affidavits of service sworn on 12th June, 2023. Applicant additionally avers that the decree against the 1st Respondent remains unpaid to date and hence seeks an Order of Mandamus compelling the Respondents to pay up. Respondents though served did not oppose the application.

4. In its submission filed on 25th September, 2023, the exparte Applicant contends that having served Respondents with the Certificate of Costs, Decree, Certificate of Costs and demand notice, it has fulfilled conditions for grant of an order of Mandamus and in support thereof placed reliance on Republic v Permanent Secretary Office of The President Ministry of Internal Security & another Ex-Parte Nassir Mwandihi [2014] eKLR where the court stated that:“It must be remembered that an application for an order of mandamus seeking an order compelling the Government to satisfy a decree is a very elaborate procedure. Before the Court issues such an order, there must be proof that the provisions of the Government Proceedings Act have been complied with respect to issuance of certificate of costs and certificate of order against the Government. After the issuance of the aforesaid documents, just like in any application for mandamus, there must be a demand for payment made by or on behalf of the decree holder to the relevant department seeking payment since in an application for an order of mandamus……”. (emphasis added).

5. It is the exparte Applicant’s case that Respondents having failed in their duty to settle the decretal sum, there was an implied refusal on their part and the only remedy available to him was compulsion of law by an order of Mandamus and in support thereof made reference to Republic v County Government of Kiambu Ex Parte Laban J Macharia Muiruri [2021] eKLR where the court stated that:“As to whether the Respondent herein is under a duty to pay the subject decretal sums, an order of mandamus is normally issued when an officer or an authority by compulsion of law or statute is required to perform a duty, and that duty, despite demand in writing, has not been performed. Execution proceedings against a government or public authority under the Government Proceedings Act can only be as against the accounting officer or chief officer of the said government or authority, who is under a statutory duty to satisfy a judgment made by the Court against that body”.

6. The circumstances under which judicial review order of mandamus are issued were discussed in the case of Republic v Kenya National Examinations Council Ex Parte Gathenji & 8 Others Civil Appeal No 234 of 1996, where the Court of Appeal cited with approval, Halsbury’s Law of England, 4th Edition. Vol. 7 p. 111 para 89 thus:“The order of mandamus is of most extensive remedial nature and is in form, of a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."...These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”

7. I have considered the application in the light of the supporting affidavit, the annexures there and the submission filed on behalf of the exparte Applicant.

8. The issue for determination is whether the exparte Applicant has made a case for issuance of an order of Mandamus against the Respondents.

9. It is settled law that before an order of mandamus is issued, an Applicant must abide by the procedure in Section 21 of Government Proceedings Act which provides:“(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.”

10. Section 21 (3) of the said Act on the other hand provides:“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.”

11. In this case, the exparte Applicant has demonstrated by evidence that the Certificate of Costs dated 12th April, 2023, copy of decree dated 08th June, 2023, Certificate for Order against the 1st Respondent, demand notice dated 22nd May, 2023 were all duly served on 12th June, 2023 as evidenced by two affidavits of service sworn on 12th June, 2023 and there is thus an implied refusal on the part of the Respondents to pay the demanded sums.

12. On whether Respondents ought to be compelled to settle the sums due, I am guided by the case of Republic v Attorney General & another Exparte James Alfred Koroso [2013] eKLR where Odunga J with approval cited Shah v Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543 where Goudie, J expressed himself, inter alia, as follows:“Mandamus is a prerogative order issued in certain cases to compel the performance of a duty…… Thus it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual. Mandamus is neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy……..With regard to the question whether mandamus will lie, that case falls within the class of cases when officials have a public duty to perform, and having refused to perform it, mandamus will lie on the application of a person interested to compel them to do so. …….. What the applicant is seeking is not relief against the Government but to compel a Government official to do what the Government, through Parliament, has directed him to do.”

13. The 3rd Respondent is by virtue of Section 17 (1) (b) of The County Assembly Services Act No. 24 of 2017 the accounting officer of the 1st Respondent (judgment/Debtor) with the obligation to pay funds, in his capacity as the such officer.

14. From the material placed before this court, Applicant has demonstrated by way of evidence, compliance with the provisions of Section 21 of the Government Proceedings Act. The 1st and 3rd Respondents on their part have not offered any explanation why the decree in favour of the exparte Applicant has not been satisfied.

15. Other than by an order of Mandamus, the exparte Applicant has no other option of realising the fruits of its judgement since it is barred from executing against the Government.

16. It is for the above reasons that I find that an order of Mandamus is merited to enforce the judgment in favour of the Applicant or else the exparte Applicant would be left babysitting on what Odunga J referred to as a barren decree. (See Republic v Attorney General & Another ex parte James Alfred Koroso (supra).

17. Accordingly, it is hereby ordered:1. An Order of Mandamus be and is hereby issued directing and compelling the 3rd Respondent who is Secretary to the Meru County Service Board (1st Respondent) and also the Accounting Officer responsible for financial matters of the Meru County Service Board, to pay the exparte Applicant within 30 days, KES. 5,390,111. 68 together with costs and interest contained in the Certificate of Costs dated 12th April, 2023, the Decree dated 08th June, 2023 and the Certificate of Order against the Government issued in Misc. Civil Applic No. E004 of 2023 Mbogo & Muriuki Advocates v Meru County Service Board2. Costs shall be borne by the 1st and 3rd Respondents

DATED IN MERU THIS 05TH DAY OF SEPTEMBER 2023WAMAE. T.W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Applicant - Mr. Muriuki for Mbogo & Muriuki AdvocatesFor Respondents - N/A