[2022] KEHC 2649 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW APPLICATION NUMBER E046 OF 2020

THE REPUBLIC OF KENYA.................................................................................APPLICANT

VERSUS

THE OFFICER INCHARGE OF THE NAIROBI CITY

COUNTY GOVERNMENT TREASURY.........................................................RESPONDENT

EX PARTE PETER MUTUKU KATIKU & DOMINIC MULULU NDAMBUKI

the administrators of the estate of FLORENCE MBULA NDAMBUKI (Deceased)

JUDGMENT

1. The brief background of the matter before this court is that in its order of 30th March,2021 this Honorable Court (Ngaah J) granted the ex parte Applicant herein leave to file an application for an Order of Mandamus directed at the Respondent herein. The Court also directed the Ex parte Applicants to file their substantive motion which is now before this court. The application seeks the following orders;

(i)THATan order of mandamus be and is hereby issued directed to the Officer in charge of the Nairobi City Council Government Treasury to pay forthwith the decretal amount in Nairobi CMCC No.1730 of 2008 of Kshs. 3,338,808. 69/= plus interest thereon at 12% from the said date of 3rd July 2019 until payment in full.

(ii) Costs of this application be provided for.

2. The Application is supported by the grounds on its face, a statement of facts dated 6th April, 2021 and verified by a supporting affidavit sworn by Dominic Mululu Ndambuki, on even date.

3. In the affidavit Mr. Mululu swears that he was one of the plaintiffs in Milimani CMCC NO.1730 of 2008, which was a claim for general and special damages arising out of an accident where his daughter Florence Mbula lost her life due to negligence on the part of Nairobi City County Government(defendant) previously referred to as City Council of Nairobi.

4. It was his disposition that judgment was entered in their favor and as at 31st October, 2018 the amount owing was Kshs. 2,739,668. 41/=. Further, that when the matter came up for a Notice to Show Cause on 3rd July,2019 the same had risen to Kshs. 3,338,808. 69/=.

5. The deponent argued that despite the Respondent having been served with the decree, a certificate of costs and demand for payment it is yet to clear the decretal sum. It was averred that complaints to the Governor for payment have gone unheeded as the office claims it has no means to force the County Treasury to pay.

6. Mr. Mululu sought for the Nairobi City County Treasury to pay Kshs. 3,338,808. 69/= plus interest thereon from 3rd July,2019 until payment in full.

7. The Ex parte Applicants also filed written submissions dated 8th November,2021. It was submitted that despite having been served with the application herein on 20th April,2021 and an Affidavit of Service filed on 22nd April,2021, the Respondent has never filed any affidavit in opposition to the application before this court. Learned counsel contended that the application therefore remains unopposed.

DETERMINATION

8. In light of the above, two issues crystallize for determination and that is whether the Respondent is under a public duty and obligation to satisfy the decree and orders issued in favour of the Ex parte Applicants in the said judgment, and secondly, if so, whether the ex parte Applicants are entitled to the relief sought.

9. The procedure for satisfaction of orders against the Government is clearly set down under Section 21 of the Government Proceedings Act which I will reproduce herein below.

“21 Satisfaction of Orders

(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 nay person against 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 21 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 latter, 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 such direction to be inserted therein.”

10. This procedure although not previously stated also applies to County Governments such as the Respondent herein. This Honourable Court (Odunga J) in the case of Republic v Attorney General & another ex-parte Stephen Wanyee Roki [2016] eKLRhad the following to say as regarding the application of the Government Proceedings Act to County Governments;

“20 Although the provisions of the Government Proceedings Act do not expressly refer to County Governments, section 7 of the Sixth Schedule to the Constitution (Transitional and Consequential Provisions) provides that:

All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.

21. It follows that the provisions of the Government Proceedings Act, a legal instrument enacted before the effective date must be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution. One such construction would be the reality that Government is now at two levels and Article 189(1)(a) of the Constitution requires that the Constitutional status and institutions of government at both the National and County levels be respected. In my view such respect cannot be achieved unless both levels of Government are treated equally and one such area would be with respect to execution proceedings.”

11. The Court of Appeal while addressing its mind on the scope and efficacy of an order of Mandamus in the case ofKenya National Examination Council vs Republic Ex Parte Geoffrey Gathenji Njoroge & Another stated as follows;

“The next issue we must deal with is this: What is the scope and efficacy of an ORDER OF MANDAMUS? Once again we turn to HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89. That learned treatise says: -

“The order of mandamus is of a most extensive remedial nature, and is, in form, 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.”

At paragraph 90 headed “the mandate” it is stated:

“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”

What do these principles mean? They mean that an order of mandamus will compel 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. We can do no better than give examples. The Liquor Licensing Act, Chapter 121 Laws of Kenya, by section 4(1) creates a licensing court for every licensing area and provides that the licensing court, chaired by the District Commissioner of each area, is to consider and determine applications for and the cancellation of liquor licences. Section 8 of the Act provides the manner and procedure to be followed by those who desire to acquire liquor licences. The duty imposed on the licensing court is “to consider and determine applications and the cancellation of licences”-section 4(1)

Now, if a party applies for a licence under section 8 and the licensing court simply refuses or neglects to consider and determine the application such a party would be entitled to come and ask the High Court for a mandamus, and if the High Court is satisfied that the licensing court has simply refused or neglected to consider and determine the “application” the High Court would be entitled to issue an order of mandamus, compelling the licensing court to consider and determine the application as it is bound by the law to do so. The High Court would, in those circumstances, be compelling, through the remedy of mandamus, the licensing court to perform its public duty imposed on it by section 4(1) of the Liquor Licensing Act, and the public duty imposed by that section is the consideration and determination of the application for a licence. The High Court cannot, however, through mandamus, compel the licensing court to either grant or refuse to grant the licence. The power to grant or refuse a licence is vested in the licensing court and unless there is a right of appeal, the High Court cannot itself grant a licence. In fact, the Act provides for appeals to the High Court by persons whose licences the licensing court has refused to renew or whose licences have been cancelled.

Another example is to be found in the Kenya National Examinations Council Act itself. Section 10(1) of that Act provides that:

“The Council shall have, for the furtherance of its objects and purposes, the following powers and duties.

(a) to conduct such academic, technical and other examinations as it may consider desirable in the public interest;

(b) to award certificates or diplomas to successful candidates in such examination;

(c) ……………………….;

(d) ……………………….;

(e) ……………………….;

Paragraph (a) above imposes on the Council a general duty to conduct academic, technical and other examinations as it may consider desirable.

It is public knowledge that the council conducts academic examination known as Kenya Certificate of Primary Education, which is the subject of the dispute before us, and the Kenya Certificate of Secondary Education. It is also public knowledge that these examinations are conducted towards the end of each year. If the Council were to refuse to conduct any of these examinations and there were candidates ready and desiring to take the examinations, we have no doubt the High Court would be perfectly entitled to compel it by mandamus to conduct the examinations as its failure to do so would constitute a failure to perform its statutory duty under section 10(a) of the Act. But the section does not specify when or how often the examinations are to be held in any one year and a candidate who is ready to take his examinations at a time when the Council is not conducting any would not be entitled to an order compelling the Council to conduct an examination for him alone. The times and frequency of the examinations are left to the discretion of the Council and it cannot be forced by mandamus to hold an examination at any particular time in the year.

Again as an incident of conducting the examinations, the Act imposes on the Council an obligation to mark the papers of the papers of the candidates. If the Council refuses or neglects to mark the examinations within a reasonable time, or having marked them, to declare the results within a reasonable time, the High Court would be within its rights to compel the Council to mark the papers or to declare the results as the case may be. The same goes for awarding diplomas or certificates to the successful candidates. That is a duty specifically imposed on it by section 10(b). But the High Court would not be entitled to order the Council, when carrying out the process of marking the examination papers, to award any particular mark to any particular candidate. That duty or function lies wholly within the province of the Council and no court has any right to interfere. To conclude this aspect of the matter, an order of mandamus compels the performance of a public duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same. If the complaint is that the duty has been wrongly performed, i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done. Only an order of CERTIORARI can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons. In the appeal before us, the respondents did not apply for an order of certiorari and that is all we want to say on that aspect of the matter.”

12. This Court notes that the Respondent herein has not entered appearance nor filed any form of response to the Ex parte Applicant’s application and therefore it is safe to assume that it is not in dispute that judgment was entered in favour of the ex parte Applicants in NairobiCMCC No.1730 of 2008and that the Respondent has a public legal duty to ensure that the decretal sum is paid to the Ex parte Applicants as awarded by the court.

13. This notwithstanding it is trite that before an Order of Mandamus can issue against the Government the provisions of Section 21 of the Government Proceedings Act must be complied with which includes serving the concerned party with the Judgement, Decree and Certificate of Order Against Government.

14. Having perused what is produced by the Ex parte Applicants before this Court and reading the Ex parte Applicants’ pleadings I gather that there is no evidence of a Certificate of Order Against the Government being served upon the Respondent as is required under the Law. The documents attached to the application herein are the Judgment in Nairobi CMCC No.1730 of 2008, a Decree, a Warrant of Sale of Property in Execution of decree for money, a Notice to Show Cause Why Execution should not Issue and a Proclamation of Attachment/Repossession/Distraint of Movable Property.

15. The Affidavits of Service also produced before this Court do not evidence service of a Certificate of Order Against Government upon the Respondent. This therefore means that an Order of Mandamus cannot issue as the Ex parte Applicants have failed to comply with the set standard.

16. However, I note that the Ex parte Applicants served the Respondent herein with a copy of the application before this court and several notices in regard to the matter before me. I am minded to believe that the Respondent is well aware of the outstanding decretal amount owed to the Ex parte Applicants and if the same was disputed then the Respondent would have objected to the said allegations by the Ex parte Applicants.

17. Being that the suit that is the origin of the application before me was instituted upon a parent losing his child due to negligence on the part of the Respondent herein, I am of the opinion that it would be misplaced to deny a parent compensation for the loss of his child as was rightfully awarded by the Chief Magistrates Court owing to an inadvertent omission on the part of counsel.

18. The Court in Republic v Principal Secretary State Department of Interior, Ministry of Interior and Coordination of National Government (supra) cited with approval the case ofRepublic vs. Town Clerk of Webuye County Council & Another HCCC 448 of 2006 where Majanja J while addressing his mind on the importance of the Court in ensuring the right of a successful litigant to enjoy the fruits of his Judgement had the following to say:

“…a decree holder’s right to enjoy fruits of his judgment must not be thwarted. When faced with such a scenario the Court should adopt an interpretation that favors enforcement and as far as possible secures accrued rights. My reasoning is underpinned by the values of the Constitution particularized in Article 10, the obligation of the court to do justice to the parties and to do so without delay under Article 159 (2) (a) & (b) and the Applicant’s right of access tojustice protected under Article 48 of the Constitution.”

19. In the foregoing I make the following Orders;

(i) The ex parte applicant’s application dated 6th April 2021 is struck out for failing to comply with section 21 of the Government Proceedings Act.

(ii) That the Ex parte Applicants are at liberty to file a fresh application if they so desire provided they abide by the provisions of the Government Proceedings Act, CAP 40.

(iii) No orders as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF FEBRUARY 2022

______________

A. K. NDUNG'U

JUDGE