[2022] KEHC 13440 (KLR)

Republic v Ministry of Interior & Coordination of National Government & another; Ndiema (Exparte Applicant); Principal Secretary Ministry of Interior & Coordination of the National Government (Interested Party) (Judicial Review E001 of 2022) [2022] KEHC 13440 (KLR) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 13440 (KLR)

Republic of Kenya

In the High Court at Bungoma

Judicial Review E001 of 2022

DK Kemei, J

July 19, 2022

IN THE MATTER OF AN APPLICATION BY PHILIP TOBOI NDIEMA FOR JUDICIAL REVIEW ORDERS OF MANDAMUS AND IN THE MATTER OF THE CHIEF MAGISTRATE’S COURT AT BUNGOMA CIVIL SUIT NO. 456 OF 2014 BETWEEN PHILIP TOBOI NDIEMA.............................PLAINTIFF VERSUS JOSEPHINE NELIMA WAMALWA.........1ST DEFENDANT THE ATTORNEY GENERAL...................2ND DEFENDANT AND IN THE MATTER OF CIVIL PROCEDURE ACT CHAPTER 21 LAWS OF KENYA, THE CIVIL PROCEDURE RULES,2010 AND IN THE MATTER OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA AND

Between

Republic

Applicant

and

Ministry of Interior & Coordination of National Government

1st Respondent

Attorney General

2nd Respondent

and

Philip Toboi Ndiema

Exparte Applicant

and

Principal Secretary Ministry of Interior & Coordination of the National zGovernment

Interested Party

Ruling

1. By a notice of motion dated the April 1, 2022, theex-parte applicant herein Philip Toboi Ndiema seeks the following orders:I.Thatthe ex-parte applicant hereby apply for judicial review orders of mandamus to issue against the Principal Secretary Ministry of Interior and Coordination of the national government to direct him to satisfy the decretal sum of Kshs 389,215/=plus accrued interest issued in Bungoma CMCC 456 of 2014. II.Costs.

2. The application is supported by the affidavit of Philip Toboi Ndiema sworn on even date.

3. A brief summary of the facts in this case are that theex-parte applicant filed a suit against the respondents in Bungoma CMCC No 456 of 2014 and thereafter judgement was delivered in his favour with the trial court awarding him Kshs 300,000/= as general damages, costs assessed at Kshs89, 215/= and interest.

4. After taxation of costs theex-parte applicant was issued with both a certificate of order and costs against the government which were duly served upon the honourable Attorney General on behalf of the interested party herein.

5. It was averred that to date the interested party has not yet satisfied the said decree and hence the application before this court.

6. The application was unopposed.

7. It is the submission of the ex-parte applicant that he lacks any other appropriate remedy to execute the decree he obtained against the Attorney General on behalf of the government except through an order ofmandamus which he seeks before this court.

8. It is the submission of the ex-parte applicant that the certificate of order against the government and the certificate of order for costs against the government were both served upon the Attorney General on behalf of the interested party as required under section 21 (1) and (2) of the Government Proceedings Act.

9. It was further submitted that the Attorney General has not preferred any appeal against the said judgement and the interested party being the chief accounting officer in the ministry of interior and coordination of the national government is mandated to settle the decree but has failed to do so despite being issued with the certificate of order against the government and the certificate of order for costs against the government.

10. The ex-parte applicant urged this court to grant him an order of mandamus compelling the interested party to settle the Kshs 197, 040/=plus accrued interest.

11. I have given due consideration to the application and the submissions herein. I find the issues that arise for determination are: -a.Whether the applicant has satisfied the conditions for issuance of a mandamus order.b.Whether the respondent is entitled to pay the applicant the claimed sum.

12. The importance of judicial review was emphasized in the case of Commissioner of Land v Kunste Hotel Ltd[1995-1998] 1EA 1 (CAK) in which the Court of Appeal laid the principle on Judicial review as follows: -“judicial review is concerned not with the private rights or the merits of the decision being challenged but with the decision-making process. its purpose is to ensure that an individual is given fair treatment by an authority to which he has been subjected’,” as was held in Republic v Secretary of State for Education and Science ex-parte Avon County Council[1991] 1 ALL ER 282.

13. In this case, the ex-parte applicant is seeking for a fair treatment. He only seeks to have the respondent pay out the said sums so that he can enjoy the fruits of his judgment, failing which it will amount to an injustice. The only way theex-parte applicant could obtain his money is by filing such an application since execution cannot issue against the government as provided for by section 21(4) of the Government Proceedings Act which states: -“Save as provided in this section, no execution, or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the government of any money or costs, 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.”

14. The effect of these provisions is that whereas execution proceedings as are known to law are not available against the government, the accounting officer for the government department concerned is nevertheless under a statutory duty to satisfy a judgement made by the court against that department. As was held by Lord Goddard C J in the English case of R (Regina) v Dudsheath, ex parte, Meredith[1950] 2 ALL ER 741, at 743, mandamus is neither a writ of course nor a writ of right, but will be granted if the duty is in the nature of a public duty, and specially affects the rights of an individual, provided there is no more appropriate remedy. See also Republic v Town Clerk, Kisumu Municipality, Ex Parte East African Engineering Consultants[2007] 2 EA 441.

15. This procedure was dealt with extensively inShah v Attorney General (No3) Kampala HCMC No 31 of 1969 [1970] EA 543 where Goudie, J eloquently, in my view, expressed himself, which expression I fully associate myself with, inter alia, as follows:“mandamus is essentially english in its origin and development and it is therefore logical that the court should look for an english definition. Mandamus is a prerogative order issued in certain cases to compel the performance of a duty. It issues from the queen’s bench division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent. 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. The person or authority to whom it is issued must be either under a statutory or legal duty to do or not to do something; the duty itself being of an imperative nature… In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fulfilment of which some other person has an interest the court has jurisdiction to grant mandamus to compel the fulfilment…The foregoing may also be thought to be much in point in relation to the applicant’s unsatisfied judgement which has been rendered valueless by the refusal of the treasury officer of accounts to perform his statutory duty under section 20(3) of the Government Proceedings Act. It is perhaps hardly necessary to add that the applicant has very much of an interest in the fulfilment of that duty…Since mandamus originated and was developed under english law it seems reasonable to assume that when the legislature in Uganda applied it to Uganda they intended it to be governed by english law in so far as this was not inconsistent with Uganda law. Uganda, being a sovereign state, the court is not bound by english law but the court considers the english decisions must be of strong persuasive weight and afford guidance in matters not covered by Uganda law…english authorities are overwhelmingly to the effect that no order can be made against the state as such or against a servant of the state when he is acting “simply in his capacity of servant”. There are no doubt cases where servants of the crown have been constituted by statute agents to do particular acts, and in these cases a mandamus would lie against them as individuals designated to do those acts. Therefore, where government officials have been constituted agents for carrying out particular duties in relation to subjects, whether by royal charter, statute, or common law, so that they are under a legal obligation towards those subjects, an order of mandamus will lie for the enforcement of the duties…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. It is no doubt difficult to draw the line, and some of the cases are not easy to reconcile… It seems to be an illogical argument that the government accounting officer cannot be compelled to carry out a statutory duty specifically imposed by parliament out of funds which parliament itself has said in section 29(1) of the Government Proceedings Act shall be provided for the purpose. There is nothing in the said Act itself to suggest that this duty is owed solely to the government…. Whereas mandamus may be refused where there is another appropriate remedy, there is no discretion to withhold mandamus if no other remedy remains. When there is no specific remedy, the court will grant a mandamus that justice may be done. The construction of that sentence is this: where there is no specific remedy and by reason of the want of specific remedy justice cannot be done unless a mandamus is to go, then mandamuswill go… In the present case it is conceded that if mandamus was refused, there was no other legal remedy open to the applicant. It was also admitted that there were no alternative instructions as to the manner in which, if at all, the government proposed to satisfy the applicant’s decree. It is sufficient for the duty to be owed to the public at large. The prosecutor of the writ of mandamus must be clothed with a clear legal right to something which is properly the subject of the writ, or a legal right by virtue of an act of parliament…..In the court’s view the granting of mandamus against the government would not be to give any relief against the government which could not have been obtained in proceedings against the government contrary to section 15(2) of the Government Proceedings Act. 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. Likewise, there is nothing in section 20(4) of the Act to prevent the making of such order. The subsection commences with the proviso “save as is provided in this section”. The relief sought arises out of subsection (3), and 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 treasury officer of accounts 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 mandamus cases it is recognised that when statutory duty is cast upon a crown servant in his official capacity and the duty is owed not to the crown 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 mandamus to enforce it. Where a duty has been directly imposed by statute for the benefit of the subject upon a crown servant as persona designata, and the duty is to be wholly discharged by him in his official capacity, as distinct from his capacity as an adviser to or an instrument of the crown, the courts have shown readiness to grant applications for mandamus by persons who have a direct and substantial interest in securing the performance of the duty. It would be going too far to say that whenever a statutory duty is directly cast upon a crown servant that duty is potentially enforceable by mandamus on the application of a member of the public for the context may indicate that the servant is to act purely as an adviser to or agent of the crown, but the situations in which mandamus will not lie for this reason alone are comparatively few…mandamus does not lie against a public officer as a matter of course. The courts are reluctant to direct a writ of mandamus against executive officers of a government unless some specific act or thing which the law requires to be done has been omitted. Courts should proceed with extreme caution for the granting of the writ which would result in the interference by the judicial department with the management of the executive department of the government. The courts will not intervene to compel an action by an executive officer unless his duty to act is clearly established and plainly defined and the obligation to act is peremptory…On any reasonable interpretation of the duty of the treasury officer of accounts under section 20(3) of the Act it cannot be argued that his duty is merely advisory, he is detailed as persona designate to act for the benefit of the subject rather than a mere agent of government, his duty is clearly established and plainly defined, and the obligation to act is peremptory. It may be that they are answerable to the crown but they are answerable to the subject…The court should take into account a wide variety of circumstances, including the exigency which calls for the exercise of its discretion, the consequences of granting it, and the nature and extent of the wrong or injury which could follow a refusal and it may be granted or refused depending on whether or not it promotes substantial justice… The issue of discretion depends largely on whether or not one should, or indeed can, look behind the judgement giving rise to the applicant’s decree. Therefore, an order of mandamuswill issue as prayed with costs.”

16. The said elaborate procedure is further meant to give adequate notice to the government to make arrangement to satisfy the decree. The procedure, in my view is not meant to relieve the government from meeting its statutory obligations to satisfy decrees and orders of the court. The rationale for the immunity against normal execution proceedings and by extension the said elaborate procedure was explained by Visram and Ibrahim, JJ (as they were) in Kisya Investments Ltd v Attorney General &another [2005] 1 KLR 74, as follows:“Order 28, rules 2(1)(a), (2) and (4) of the Civil Procedure Rules subject themselves to the provisions of the Government Proceedings Act which include provisions prohibiting execution against or attachment in respect of the government. The said rules themselves expressly preclude such actions. In pursuance of the ends of justice the courts are bound to apply the law as it exists. Many a times such application may indeed not attain that goal due to the effect of the said laws. On the question of abuse of the process of the court, the application of any written law cannot amount to an abuse of the process of the court however much its effect is harsh or even undesirable…. history and rationale of government’s immunity from execution arises from the following: - Firstly, there has been a policy in respect of parliamentary control over revenue and this is threefold and is exercised in respect of (i) The raising of revenue- (by taxation or borrowing); (ii) its expenditure; and (iii).The audit of public accounts. The satisfaction of decrees or judgements is deemed to be an expenditure by parliament and as a result of this must be justified in law and provided for in the government’s expenditure. It is for this reason that section 32 of the Government Proceedings Act provides that any expenditure incurred by or on behalf of the government by reason of this Act shall be defrayed out of the moneys provided by parliament. Parliamentary control over expenditure is based upon the principle that all expenditure must rest upon legislative authority and no payment out of public funds is legal unless it is authorized by statute, and any unauthorized payment may be recovered. See Halsbury’s Laws of Engaland 4th Edn Vol 11 para 970, 971 and 1370. As a result of the foregoing, which was borrowed from the Crown Proceedings Act, 1947 (section 37) of England, this is a warning that any payment by government must be covered by some appropriation. It is said that parliament is very jealous of its control over the expenditure and this is as it should be. No ministry or department has any ready funds at all times to satisfy decrees or judgements. While existence of claims and decrees may be known to the ministries and departments, they have to notify the ministry of finance and treasury of the same so that payment is arranged for or provisions made in the government expenditure. See Auckland Harbour Board v R(1924) AC 318, 326. The second situation, which arises from the above, is that once a decree or judgement is obtained against the government, it would require some reasonable time to have it forwarded to the ministry of finance, treasury, comptroller and auditor general etc. for scrutiny and approvals for it to be paid from the consolidated fund. The ministries and departments do not have their “own” funds to settle such decrees or payments and considering the nature of the government structure, procedures, red tape and large number of claims, this could take a long time. If execution and/or attachment against the government were allowed, there is no doubt that the government will not be able to pay immediately upon passing of decrees and judgements and will be inudated with executions and attachments of its assets day in, day out. Its buildings will be attached and its plants and equipment will be attached, its furniture and office equipment will be attached, its vehicles, aircraft, ship and boats will be attached. There will be no end to the list of likely assets to be attached and auctioned by the auctioneer’s hammer. No government can possibly survive such an onslaught. The government and therefore the state operations will ground to a halt and paralysed and soon the government will not only be bankrupt but it’s constitutional and statutory duties will not be capable of performance and this will lead to chaos, anarchy and the breakdown of the rule of law. This is the rationale or the objective of the law that prohibits execution against and attachment of the government assets and property.”

17. It is therefore clear that apart from the fact of the existence of a judgement against the government, the law recognizes that due to the special role played and the central position held by the government in the management of the affairs of the country, there is a necessity for further proceedings to be undertaken before the judgement can be implemented.

18. Where a party has complied with all the procedures leading to the grant of an order ofmandamus to subject the party to the normal procedures relating to contempt of court proceedings would engender a miscarriage of justice yet article 159(2)(b) of the Constitution mandates that justice ought not to be delayed. To take a successful litigant in circles when adequate notices have been given to the government to settle a decree would be to turn the legal process into a theatre of the absurd. It is only proper and appropriate that the applicant who has exhausted all the remedies available should be granted the judicial remedy of mandamus so as to enjoy the fruits of his judgement. Despite the applicant pursuing all the avenues, the Attorney General is yet to settle the decree. Further, the interested party who is the accounting officer in the ministry of interior and coordination of national government should settle the decree and costs on behalf the ministry.

19. Accordingly, no compelling reason has been advanced by the respondents why this application which is otherwise merited ought not to be granted.

20. In the result, I find merit in the notice of motion dated April 1, 2022. I grant an order of mandamus compelling the principal secretary ministry of interior and co-ordination of national government (interested party) directing him to satisfy the decretal sum of Kshs 389,215/= plus accrued interest issued in Bungoma CMCC 456 of 2014. The ex-parteapplicant is awarded the costs of the application to be borne by the 1st respondent.It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 19TH DAY OF JULY, 2022D.KEMEIJUDGEIn the presence of:Maloba for Bw’ onchiri for Ex-Parte ApplicantNo Appearance for 1st and 2nd RespondentsNo Appearance for Interested PartyKizito Court Assistant