[2024] KEHC 14868 (KLR)

Republic v Nairobi City County Government; Multiline Services Limited (Exparte) (Judicial Review Application E025 of 2023) [2024] KEHC 14868 (KLR) (Judicial Review) (24 September 2024) (Judgment)

Neutral citation: [2024] KEHC 14868 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E025 of 2023

JM Chigiti, J

September 24, 2024

Between

Republic

Applicant

and

Nairobi City County Government

Respondent

and

Multiline Services Limited

Exparte

Judgment

1. The application that is before this court is the one dated 2nd November, 2023 wherein the applicant seeks the following orders, inter alia:1)That orders of Mandamus be and are hereby given and issued compelling, jointly and severally, the County Secretary and Head of Public Services, and or the Member of the Executive Committee and Head of Finance and Economic Affairs, and or the Chief Finance Officer all of the Respondent-Nairobi City County Government to forthwith, and in any event within seven (7) days of this order being served upon any one of them to pay direct to Multiline Services Limited or to Munikah & Company Advocates; as follows:i.The sum of Kshs. 4,060,225= due and payable to Multiline Services Limited, as on 26th October 2023, andii.Further interest calculated thereon at the Court rate of 12% per annum accrued on the said sum Kshs. 4,060,225= from 27th October 2023, until payment in full.iii.Costs of this Application be awarded to the Applicant.

2. The applicant relies on the Statutory Statement as required under Order 53 Rule 1(2) of the Civil Procedure Rules, a Verifying Affidavit and a Supporting Affidavit sworn by one of the Directors, Samson Masaba Munikah of the Applicant-Company on 26th October 2023.

3. The Application is not opposed.

4. Through the verifying Affidavit, Samson Masaba Munikah an Advocate of the High Court of Kenya argues that he was engaged in the prosecution of the case registered in the Chief Magistrate Court at Nairobi as Civil Case No. 6004 of 2016, between the Applicant and the Respondent.

5. It is his case by virtue of a Decree issued by the said Chief Magistrate Court in CMCC No.6004 of 2016 the Respondent was ordered to pay to the Applicant Kshs. 8,052,671 and Kshs. 315,844 in respect of costs therefore a total decretal sum of Kshs. 8,368,515 inclusive of certified costs, and further to pay interest thereon at Court rates from 1st July 2019 until payment of the decretal sums costs and interest in full.

6. A Certificate of Order was thereafter given on 1st July 2019 and issued on 17th November 2022 for the sum of Kshs. 8,368,515 inclusive of costs and interest from the date of judgment together with interest of 12% per annum on the principal amount.

7. It is its case that the Respondent paid Kshs. 7,523,802. 50 on the 26th July 2021 out of Kshs. 11,882,006. 38 leaving an unpaid balance of Kshs. 3,558,203. 88, on which interest has continued to accrue to-date, enhancing the balance due and payable to become Kshs. 4,060,225. 88 which continues to accrue further interest.

8. It is its case that several letters from inter alia the one dated 19th July 2022 and Notices of intention to institute recovery proceedings have been served upon the Respondent.

9. The Respondent has failed, refused and neglected to pay.

10. The Respondent did not file any response.

Analysis and determination; The issue for determination is whether the Applicant has made out a case for the grant of the orders sought. 11. In the case of Republic v Attorney General Ex Partes Miriam Wairimu Wambugu & another [2021] eKLR the learned Judge placed reliance on the holding in Republic vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) where Githua J. held as follows:“In ordinary circumstances once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21 (4) of the Government Proceedings Act. 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 27 (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."

12. In the instant suit, the applicant has only furnished the court with the Decree issued by the said Chief Magistrate Court in CMCC No.6004 of 2016 and a Certificate of costs given on 1st July 2019. Section 27 (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.

13. They did not furnish the court with the certificate of costs and it is this court’s finding that the applicant has not proven its case. This court cannot invoke Article 159 of the Constitution to salvage the Applicant’s case and I so hold.

Disposition; 14. The applicant failed to furnish the court with the Certificate of order and it is this court’s finding that the applicant has not proven its case. This court cannot invoke Article 159 of the Constitution to salvage the Applicant’s case and I so hold.Order:The application dated 2nd November, 2023 is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF SEPTEMBER 2024. ………………………J.M. CHIGITI (SC)JUDGE