[2023] KEHC 26297 (KLR)

Republic v Narok County Government & another; Tom Ojienda & Associates (Exparte) (Application 123 of 2022) [2023] KEHC 26297 (KLR) (Judicial Review) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26297 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application 123 of 2022

J Ngaah, J

December 8, 2023

Between

Republic

Applicant

and

County Secretary Narok County Government

1st Respondent

Chief Officer Finance/County Treasurer Narok County Government

2nd Respondent

and

Tom Ojienda & Associates

Exparte

Judgment

1. The application before court is the applicant’s motion dated 1 February 2023. It is expressed to be brought under Order 53 rule 3 of the Civil Procedure Rules. The application seeks the following orders: 1. That an order of mandamus be issued compelling the County secretary and chief officer, finance/County treasurer, Narok County, directing them to pay the applicant forthwith and without delay the decretal sum as per the certificate of order issued on 28th June 2022 delineated hereunder together with accrued interest until payment in full, that is;Amount awarded 8,842,648. 00/=Interest at 12% p.a from 27th September, 2018to 24th June 2022 amounting to 3,974,104. 05/=Total Kshs. 12,816,752. 05/=.

2. That in default, notice to show cause do (sic) issue against the chief officer, finance/County treasurer, Narok County Government to show cause why they should not be cited for contempt of court.3. That the costs of this application be borne by the respondents.

2. The application is based on a statutory statement dated 3 August 2022 and an affidavit verifying the facts relied upon sworn on even date by Prof. Tom Ojienda.

3. According to Professor Ojienda, he filed an advocate client-bill of costs dated 29 November 2017. The bill of costs arose out of a judgement in civil application no. 289 of 2015, Narok County Government versus the Senate & Another in which he, apparently, represented the County Government of Narok.

4. By a ruling delivered on 27 September, 2018, the bill of costs was taxed at Kshs. 8,842,648. 00/=. A certificate of taxation to this end was issued on 29 October 2018.

5. Although the applicant has written to the respondents on several occasions to settle the taxed amount they have failed to do so. The applicant then filed an application for a judgement against the County Government of Narok for the sum of Kshs. 8,842,648. 00/=

6. On 25 January 2021, a consent judgement for this sum was entered for the applicant against the County Government of Narok. The accruing interest from 27 September,2018 to 24 June, 2022 is stated to be Kshs. 3,974,104. 05 bringing the total amount due to Kshs. 12,816,754. 05/=.

7. The respondents were served with the certificate of order against Government on 28 June 2022 but they have not complied and settled the amount due to the applicant. It is for this reason that the applicant is now seeking for the order of mandamus to compel them to pay

8. John Mayiani Tuya swore replying affidavit opposing the application. He states that he has sworn the affidavit on his own behalf and on behalf of the 2nd respondent. I understand this to imply that he is the 1st respondent.

9. Tuya has sworn that he and the 2nd respondent assumed office in November 2022 and December 2022 respectively. Since then, they have been reconciling financial records in order to determine the outstanding liabilities of the County Government and consider how to settle those liabilities.

10. He is also aware that the previous government of the County Government of Narok had commenced negotiations with the applicant to determine the amount due to the applicant. In order for the applicant to be paid, Tuya has sworn, an audit has to be undertaken and for this reason, the County government of Narok needs sufficient time to undertake the audit.

11. It is apparent from the respondents’ replying affidavit that the respondents acknowledge that the County Government of Narok owes the applicant and the extent of the debt is contained in the certificate of order against the Government which they acknowledge as having received.

12. Their only bone of contention is that they need time to verify the applicant’s claim by some sort of audit.

13. The County Government of Narok may very well be entitled to conduct an audit and verify its liabilities but, considering that the judgment or decree or the certificate of order certificate against the Government have neither been challenged nor stayed, the audit or verification is superfluous and does not relieve the County Government from its obligation to settle its liability towards the applicant.

14. Audit or verification of a county Government’s liabilities in these circumstances would not supersede a judgment or decree obtained from a court of competent jurisdiction. Looking at the amount that has now accrued as interest, the liability of the County Government of Narok is likely to grow even further at the expense of the tax-payer if the total amount due is not settled at the earliest opportunity possible.

15. It is inevitable, in these circumstances, that a mandatory or mandamus order should ensue, if not for anything else, to mitigate the loss that the tax payer has been subjected to.Why a mandatory order?

16. One of the ways through which decrees or orders are enforced is, of course, execution or attachment. However, the Government is protected from such process of execution or other similar process in enforcement of decrees or orders by section 21 of the Government Proceedings Act, in particular, section 21(3) thereof. That section reads 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 (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.(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.

17. In the face of this protection from execution or attachment, the only available route open to the applicant is to compel the 1st respondent to perform his statutory duty under section 21(3) of the Act and pay what has been decreed as due and owing to the applicant. In other words, only the order of mandamus would be the appropriate order under the circumstances.

18. According to Halsbury's Laws of England/Judicial Review (volume 61 (2010) 5th Edition)/5. Judicial Remedies/ (1) Introduction paragraph 689:“A mandatory order is, in form, a command issuing from the High Court, directed to any person, corporation or inferior tribunal requiring him, or them, to do some particular thing specified in the command which appertains to his or their office and is in the nature of a public duty (See Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 1 All ER 694, HL). The breach of duty may be a failure to exercise a discretion, or a failure to exercise it according to proper legal principles.”

19. This is reiterated in paragraph 703 which states:“A mandatory order is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or it to do some particular thing specified in the order which appertains to his or its office and is in the nature of a public duty… the purpose of a mandatory order is to compel the performance of a public duty, whether of an inferior court or tribunal to exercise its jurisdiction, or that of an administrative body to fulfil its public law obligations. It is a discretionary remedy.”

20. And with particular reference to public officers who, like in the instant case, fail to perform their duty, paragraph 706 is clear that a mandamus order may be issued to compel them to carry out the duty. It reads as follows:706. Public duties by government officials.If public officials or public bodies fail to perform any public duty with which they have been charged, a mandatory (mandamus) order may be made to compel them to carry out the duty (See R v Metropolitan Police Comr, ex p Blackburn (No 3) [1973] QB 241, [1973] 1 All ER 324, CA; R v London Transport Executive, ex p GLC [1983] QB 484, [1983] 2 All ER 262, DC.)”

21. The applicant has demonstrated that he extracted a certificate of order against government and that the same was duly served upon the respondents. It has not been suggested that applicant defaulted in any step prescribed under section 21 of the Act as to disentitle him to the order of mandamus. In any event, the respondents have acknowledged that they are aware that the decree or the amount specified in the certificate of order against Government has not been settled.

22. A demand for payment having been made and the respondents having failed to pay, no other evidence is required to demonstrate that the 1st respondent has failed to perform a public duty with which they are charged under section 21(3) of the Government Proceedings Act. A mandamus order would properly issue in such circumstances.

23. Accordingly, I allow the applicants application to the extent that the order of mandamus is hereby granted compelling the respondents, jointly or severally, to pay the applicant in terms of the certificate of order against the government issued on 28 June 2022. The applicant will also have costs of the application. It is so ordered.

SIGNED, DATED AND DELIVERED VIA VIDEO LINK ON 8 DECEMBER 2023NGAAH JAIRUSJUDGE