[2023] KEHC 27419 (KLR)

Republic v Principal Secretary, Ministry of Information & Coordination of national Government & another; Kimani (Exparte Applicant) (Judicial Review E005 of 2022) [2023] KEHC 27419 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27419 (KLR)

Republic of Kenya

In the High Court at Nakuru

Judicial Review E005 of 2022

SM Mohochi, J

December 7, 2023

Between

Republic

Applicant

and

Principal Secretary, Ministry of Information & Coordination of national Government

1st Respondent

The Hon Attorney General

2nd Respondent

and

Paul Kimani

Exparte Applicant

Judgment

Introduction 1. By Notice of Motion dated 25th April 2023, filed pursuant to Section 5 of the Judicature Act (Cap. 8) and Section 3A of the Civil Procedure Act (Cap. 21) and all other enabling provision of the law including inherent jurisdiction of the Court.

2. The Ex-parte Applicant prays for the following orders;a.That, the Principal Secretary (State Department for Correctional Services), Ministry of Interior & Coordination of National Government be found to be in contempt of court, for disobedience of the orders of Mandamus issued by this Honourable court on or about 14th July 2022 in this matter and hence liable for imprisonment for a period not exceeding six (6) months and or any other punishment that this honourable court might deem fit;b.That this honourable court be pleased to issue any other order that it may deem reasonable and or expedient in the circumstances.

Ex-Parte Applicant’s Case 3. The Ex-parte Applicant instituted Nakuru CMCC 146 of 2019 Paul Kimani –VS- Ministry of Home Affairs & 5 Others, claiming damages as a result of a Road Traffic Accident and judgement was delivered in his favour and a Decree/certificate of costs and Certificate of order against the Government was drawn certifying the amount payable to him.

4. The 1st Respondent, Defendant/judgement-debtor therein, failed to honor/settle the said judgement as a result of which the Ex-parte Applicant commenced these judicial review proceedings for orders of Mandamus against the Respondents and which were equally determined in his favor and an order of Mandamus consequently issued compelling/directing the Respondent(s) herein to pay him the judgement sum in the lower court plus costs and interest as more particularized in the order of Mandamus, Certificate of Taxed costs and a further order against Government annexed to the supporting affidavit to the application.

5. The same were duly served upon the Respondents herein and despite demand, they failed to Honor or comply with the same which necessitated filling of the current application.

6. As such and in the circumstances, the Ex-Parte Applicant prays that the application is merited since there is no other avenue/remedy available to the subject herein to ensure that his dues are paid and also to enable the court stamp its authority by, ensuring compliance with its orders. Ex-Parte Applicant relies on the case of Seventeenth Enterprises Limited Cabinet Secretary for Ministry of Interior and Coordination of National Government & 2 others [2016]:-.... Execution as in ordinary proceedings is prohibited against the Government and its Officers acting in their official capacities. This immunity was emphasized by Visram and lbrahim, JJ (as they were) in Kisya Investments Ltd vs. 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 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 or 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." This position is now underpinned in section 7(2)) of the Fair Administrative Action Act under which the Court is empowered to issue orders of judicial review where there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law. In those circumstances section 11(1) of the said Act empowers the Court to issue an order compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right. In the present case the ex-parte applicant has no other option of realizing the fruits of his judgement since he is bared from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that he has been awarded is realised. Unless something is done he will forever be left baby-sitting his barren decree. This state of affairs cannot be allowed to prevail under our current Constitutional dispensation in light of the provisions of Article 48 of the Constitution which enjoins the State to ensure access to justice for all persons. Access to justice cannot be said to have been ensured when persons in whose favour judgements have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgement due to roadblocks placed on their paths by actions or inactions of public officers. Public offices, it must be remembered are held in trust for the people of Kenya and Public Officers must carry out their duties for the benefit of the people of the Republic of Kenya. To deny a citizen his/her lawful rights which have been decreed by a Court of competent jurisdiction is, in my view, unacceptable in a democratic society. Public officers must remember that under Article 129 of the Constitution executive authority derives from the people of Kenya and is to be exercised in accordance with the Constitution in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit... The institution of judicial review proceedings in the nature of mandamus cannot be equated with execution proceedings. In seeking an order for mandamus the applicant is seeking, not relief against the Government, but' to compel a Government official to do what the Government, through Parliament has directed him to do. The relief sought 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 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 on him by Parliament. The fact that the Accounting Officer is not distinct from State of which he is a servant does not necessarily mean that he cannot owe duty to a subject as the Government which he serves. Whereas it is true well as that he represents the Government, it does not follow that his duty is therefore confined to his Government employer. In mandamus cases it is recognized that when statutory duty is cast upon a Public Officer in his official capacity and the duty is owed not to the State 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. In other words, mandamus is a remedy through which a public officer is compelled to do a duty imposed upon him by the law. It is in fact the State, the Republic. on whose behalf he undertakes his duties, that is compelling him, a servant, to do what he is under a duty, obliged to perform. Where therefore a public officer declines to perform the duty after the issuance of an order of mandamus, his/her action amounts to insubordination and contempt of Court hence an action may perfectly be commenced to have him cited for such. Such contempt proceedings are no longer execution proceedings but are meant to show the Court's displeasure at the failure by a servant of the state to comply with the directive of the Court given at the instance of the Republic, the employer of the concerned public officer and to uphold the dignity and authority of the court.”

7. Reliance is placed by the Ex-Parte Applicant in the case of Republic v The Permanent Secretary Ministry of Transport and Infrastructure & another [2016] eKLR:- As observed above, the application before me is not opposed.“This court (Wakiaga J), granted an order of mandamus on 3rd June 2013 directing the Respondents to pay to the ex parte the sum awarded in CMCC No 341 of 1998. The said order was served upon the Respondents' but they have not complied with the same, hence the present application. According to Black's Law Dictionary;" Contempt is a disregard of, disobedience to, the rules, or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body."In Halsbury's Laws of England, it is stated: -“It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment…...... an application to court by him not being entertained until he had purged his contempt"In book The Law of Contempt learned authors Nigel Lowe & Brenda Sufrin state as follows: -"Coercive orders made by the courts should be obeyed and undertakings formally given to the courts should be honored unless and until they are set aside. Furthermore, it is generally no answer to an action for contempt that the order disobeyed or the undertaking broken should not have been made or accepted in the first place. The proper course if it is sought to challenge the order or undertaking is to apply to have it set aside.

8. In Econet Wireless Kenya Ltd Vs Minister for Information & Communication of Kenya & Another Ibrahim J (as he then was) stated as follows: -“It is essential for the maintenance of the Rule of Law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against or in respect of whom, an order is made by Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void...In the present case the terms of the order are not in dispute. Knowledge or the order is not disputed. The alleged disobedience is not contested. l am satisfied that the applicant has demonstrated that there are sufficient grounds to warrant this court to allow the application. Accordingly, I hereby allow the application dated 30th March 2015 and order as follows:i.That Principal Secretary, Ministry of Transport and Infrastructure and the Principal Secretary Ministry of Land, Housing and Urban Development be and are hereby committed to civil to jail for a term not exceeding six (6) for disobeying this court's order issued on 3rd June 2013. ii.That the said committal to civil jail may be dispensed with upon prompt payment to the ex parte applicant or his advocates on record of the full decretal sum awarded to Nyeri Civil Suit No. 341 of 1998. Orders accordingly.

9. Reliance is placed by the Ex-Parte Applicant in the case of Republic v Permanent Secretary Office of The President Ministry Of Internal Security & another Ex-Parte Nassir Mwandihi 2014] eKLR:-“It is not in doubt that section 21(4) of the Government Proceedings Act prohibits execution against the Government. 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. 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. In the present case the ex-parte applicant has no other option of realising the fruits of his judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that he has been awarded is realised. Unless something is done he will forever be left baby-sitting his barren decree. This state of affairs cannot be allowed to prevail under our current Constitutional dispensation in light of the provisions of Article 48 of the Constitution which enjoins the State to ensure access to justice for all persons. Access to justice cannot be said to have been ensured when persons in whose favour judgements have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgement due to roadblocks placed on their paths by actions or inactions of public officers. Public offices, it must be remembered are held in trust for the people of Kenya and Public Officers must carry out their duties for the benefit of the people of the Republic of Kenya. To deny a citizen his/her lawful rights which have been decreed by a Court of law jurisdiction is, in my view, unacceptable in a democratic society. Public officers must remember that under Article 129 of the Constitution executive authority derives from the people of Kenya and is -to be exercised in accordance with the Constitution in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.... The institution of judicial review proceedings in the nature of mandamus cannot be equated with execution proceedings. In seeking an order for mandamus the applicant is seeking, not relief against the Government, but to compel a Government official to do what the Government, through Parliament, has directed him to do. The relief sought 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 Accounting Officer 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 Public Officer in his official capacity and the duty is owed not to the State 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. In other words, mandamus is a remedy through which a public officer is compelled to do a duty imposed upon him by the law. It is in fact the State, the Republic, on whose behalf he undertakes his duties, that is compelling him, a servant, to do what he is under a duty, obliged to perform. Where therefore a public officer declines to perform the duty after the issuance of an order of mandamus, his/her action amounts to insubordination and contempt of Court hence an action may perfectly be commenced to have him cited for such. Such contempt proceedings are no longer execution proceedings but are meant to show the Court's displeasure at the failure by a servant of the state to comply with the directive of the Court given at the instance of the Republic, the employer of the concerned public officer and to uphold the dignity and authority of the court.

10. On the other hand, Ex-parte Applicant urges court to note that, the Respondents did not file any affidavit in response to the averments in the application herein and which failure he submits is fatal, since submissions no matter how good they are cannot substitute evidence as was held in the case of Henry Musemate Murwa v Francis Owino, Principal Secretary, Ministry of Public Service, Youth And Gender Affairs & another [2021] eKLR:- The Respondents did not file any affidavit to contest the averments in the application. The averments by Counsel for the Respondents that Dr. Francis O. Owino is not the Principal Secretary is not supported by any evidence. Submissions cannot take the place of evidence as was stated by the Court of Appeal in Daniel Toroitich Arap Moi Vs Mwangi Stephen Mureithi & Another (2014) eKLR.

11. The Ex-parte Applicant humbly submit that, the application herein is merited and should thus be allowed as uncontested. That the Respondents herein ought not to be heard to argue that, they cannot pay the subject herein his dues since there is no budgetary allocation for the same. This is because firstly, existence of a budgetary allocation is not a condition precedent to pay and secondly, it is the responsibility of the government to settle claims against it at all material times as was buttressed in the case of Seventeenth Enterprises Limited v Cabinet Secretary for Ministry of Interior and Coordination of National Government & 2 others [2016] where the court held that:-“This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues. The Respondent's claim that the Applicant should have waited until the start of the next financial year to enforce payment of the decree issued in his favour cannot be sustained firstly because it has no legal basis and secondly because it is the responsibility of the Government to make contingency provisions for its liabilities in tort in each financial year so that successful litigants who obtain decrees against the Government are not left without remedy at any time of the year.”

12. The Ex-parte Applicant pray for costs of this application since costs follow event.

Analysis & Determination 13. With the Respondents having elected not to respond to, or defend, the application, all the factual depositions made by the Ex-Parte Applicant have not been rebutted. The application is unopposed.

14. In John Ogendo Anyona v Chief of Kenya Defence Forces & 2 others [2014] eKLR, the Court held that: -“That the Respondents did not file any response to the Notice of Motion and the grounds set out therein. Similarly, there is no substantive response by the Respondents to the statutory statement and the reliefs sought therein. The matters set out in the verifying affidavit have not been controverted in a replying affidavit.In law the averments in the supporting affidavit in particular, having remained unchallenged to date, stand proven on a balance of probability and the Court proceeds to apply the law applicable in matters of this nature based on the proven facts.”

15. In the case of Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR, the Supreme Court held as follows: -“a Replying Affidavit is the principal document wherein a respondent's reply is set and the basis of any submissions and/or List of Authorities that may be subsequently filed. Absence this foundational pleading the Replying Affidavit, it follows that even the Written Submissions purportedly filed by the 1st Respondent on 17th August, 2018 are of no effect. ... The upshot is that as the 2nd and 3rd Respondents had categorically stated that they do not oppose the application, the Court Will be excused for therefore deeming the application as being unopposed entirely”,

16. Further, in Car Importer Mombasa Association of Kenya v County Government of [2021] eKLR, the court held as follows: -Similarly, in Phillip Tirop Kitur vs. Attorney General [2018] ekLR, the Court accepted the affidavit evidence, and ruled that in the absence of a replying affidavit or oral evidence from the Attorney General, the Petitioner's evidence stood unchallenged. In addition, the High Court rejected the Attorney General's contention that the delay in filing the Petition had cause Replying Affidavit or oral evidence, the Court had no facts upon which caused it prejudice, ruling that in the absence of a it could make such a finding. Therefore, by the mere fact of the affidavits not having been controverted, there is an assumption that what is averred in the affidavit as factual evidence is admitted.”[Emphasis supplied]

17. Article 10 of the Constitution sets out the National Values and Principles of Governance that bind all state officers, state organs, public officers and all persons whenever they apply or interpret the Constitution, enact, apply or interpret any law, make or implement public policy decisions. The National Values and Principles of Governance include: the rule of law, equity, inclusiveness, equality, human rights, non-discrimination, good governance, transparency, accountability, democracy and participation of the people.

18. Under Article 47(1) of the Constitution, 'every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair." The essence of the right to fair administrative action is to ensure administrative. processes meet constitutional standards, the element that administrative act must be "lawful encapsulates the principle of legality and the fact the administrative action must be located in the law and must not be arbitrary.

19. In James Opiyo Wandayi v Kenya National Assembly &2 others [2016) eKLR this Court, Odunga J., opined as follows:“In my view Article 47 of the Constitution is now emphatic on the fairness of administrative action. The purpose of judicial review is to check that public bodies do not exceed their jurisdiction and carry out their duties in a manner that is detrimental to the public at large.it is meant to uplift the quality of public decision making, and thereby ensure for the citizen civilized governance, by holding the public authority to the limit defined by the law. Judicial review is therefore an important control, ventilating a host of varied types of problems, the focus of cases may range from matters of grave public concern to those of acute personal interest; from general policy to individualized discretion; from social controversy to commercial self- policy to interest; and anything in between, As a result, judicial review has significantly improved the quality of decision making. it has done this by upholding the values of fairness, reasonableness and objectivity in the conduct of management of public affairs. It has also restrained or curbed arbitrariness, checked abuse of power and has generally enhanced the rule of law in government business and other public entities. Seen from the above standpoint it is a sufficient tool in causing the body in question to remain accountable.”

20. Article 232(1) lays down the values and principles of public service which include high standards of professional ethics; efficient, effective and economic use of resources; responsive, prompt, effective, impartial and equitable provision of services; accountability for administrative acts and transparency and provision to the public of timely, accurate information. The fact that the Respondents have remained unresponsive despite repeated demonstrable service being effected on them reveals the stark reality of practices undermining our constitutional order

21. Senior Public Officers such as the Principal Secretary, Ministry of Interior & Coordination of National Government are expected to lead from the front by manifesting the highest standard of respect of the law, promotion and practice of the constitutional values and principles anything short of this, triggers this court’s sanction.

22. The Court finds the application to be of merit, unopposed and the same allowed on the following terms;a.That, Salome M. Beacco, the Principal Secretary (State Department for Correctional Services), Ministry of Interior & Coordination of National Government is found to be in contempt of court, for disobedience of the Orders of Mandamus issued by this Court on/or about 14th July 2022;b.That, Salome M. Beacco, the Principal Secretary (State Department for Correctional Services), Ministry of Interior & Coordination of National Government is hereby convicted and sentenced to personally pay a fine of Kshs 200,000/- and in default to serve sixty (60) days imprisonment at the Langata Women’s Prison.c.That, Salome M. Beacco, the Principal Secretary (State Department for Correctional Services), Ministry of Interior & Coordination of National Government has Thirty (30) Days from the date of service of this order, to pay the fine and purge the Contempt by paying the judgment sum as particularized in the Order of Mandamus.d.That, failure to purge the contempt by Salome M. Beacco, shall give rise to issuance of warrants of arrest and committal warrants for imprisonment forthwith being issued.It is So Ordered.

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 7TH DECEMBER 2023________________________MOHOCHI S.MJUDGEIn the presence of:Mr. Ratemo Advocate for the Ex-Parte ApplicantsRespondents-AbsentIntrested Party-Absent