[2022] KEHC 3196 (KLR)

Republic v Principal Secretary, State Department of Planning, Ministry of Devolution and Planning & another (Judicial Review 2 of 2019) [2022] KEHC 3196 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3196 (KLR)

Republic of Kenya

In the High Court at Nakuru

Judicial Review 2 of 2019

JM Ngugi, J

July 14, 2022

Between

Republic

Applicant

and

Principal Secretary, State Department of Planning, Ministry of Devolution and Planning

1st Respondent

Principal Secretary, Ministry of Finance & National Treasury

2nd Respondent

Judgment

1. The litigation in this rather sad narrative began with a Petition dated 07/05/2015. In that Petition, the Applicants herein sued the Respondents for alleged violations of their constitutional rights – including the anti-discrimination clause in Article 27 of the Constitution – and asked for the following remedies reproduced here verbatim:a.A declaration that the Respondents’ actions are in violation of Articles 10 and 232 of the Constitution.b.A declaration that the Respondents have violated the Petitioners’ rights guaranteed under Articles 27, 28, 29, 43 and 47 of the Constitution.c.An order that the Respondents produce copies of the Level III Register of internally displaced persons registered at Saw Mill Camp – Molo and an account of the beneficiaries of the money and land allocated for the resettlement of the said internally displaced persons.d.An order that the Respondents do pay Kshs. 35,000/- and allocate 2 ¼ acres to each petitioner.e.An order that the Respondents do pay general damages to the Petitioners for violating their rights.f.Costs of this petition.g.Any other relief that this Honourable Court may deem fit and just to grant.

2. The Petitioners were successful in that litigation. By a judgment dated 30/09/2016, the Learned Justice M. Odero found in their favour. The disposition of the case, reproduced verbatim, was as follows:In conclusion, based on the foregoing, I find that:i.The Petitioners herein are victims of the 2007/2008 post-election violence who were entitled to compensation but have not been compensated.ii.The 1st Respondent [Principal Secretary, State Department of Planning, Ministry of Devolution and Planning] shall compensate the Petitioners in the same manner as it did for the other internally displaced persons (IDPs) within 90 days from the date of the judgment.iii.The Petitioners are awarded costs of this Petition.

3. The Petitioners extracted a decree issued on 11/10/2016 which is in the exact terms as the judgment. In pertinent part it reads:It is Hereby Decreed:1. That the Petitioners herein are victims of the 2007/2008 post-election violence who were entitled to compensation but have not been compensated.2. That the 1st Respondent [Principal Secretary, State Department of Planning, Ministry of Devolution and Planning] be and is hereby ordered to compensate the Petitioners in the same manner as it did for the other internally displaced persons (IDPs) within 90 days from the date of the judgment.3. That the Respondents be and are hereby ordered to pay the Petitioners’ costs of this Petition.

4. The Petitioners’ Counsel also went for Party and Party Costs taxation. In a ruling dated 10/10/2017, the Learned Deputy Registrar taxed the filed Bill of Costs at Kshs. 1,599,549.

5. Next, the Petitioners applied for a Certificate of Order Against the Government pursuant to Order 29 Rule 3 of the Civil Procedure Rules. The Learned Deputy Registrar issued one on 29/01/2018. It is important to reproduce it in its entirety. It reads thus:By a judgment of this Court dated the 30th day of September, 2016, it was decreed that:1. That the Petitioners herein are victims of the 2007/2008 post-election violence who were entitled to compensation but have not been compensated.2. That the 1st Respondent [Principal Secretary, State Department of Planning, Ministry of Devolution and Planning] be and is hereby ordered to compensate the Petitioners in the same manner as it did for the other internally displaced persons (IDPs) within 90 days from the date of the judgment.Particulars:a.Payment of Kshs. 35,000/- to each Petitioner, 35,000 x69 = Kshs. 2,415,000. 000. b.Allocation of 2 ¼ acres of land to each Petitioner.3. That the Respondents be and are hereby ordered to pay the Petitioners’ costs which have been taxed and certified by the Registrar at Kshs. 1,599,549/= (One Million Five Hundred and Ninety-Nine Thousand, Five Hundred and Forty-Nine) only. Interest is payable on the said costs at 14% from the 10th day of October, 2017 until the date of the payment.

6. This Certificate of Order Against the Government became a subject of two Applications in that Petition: one, by the Applicants here, aimed at reviewing the substantive judgment to bring it in line with the Certificate of Order Against the Government; while the other, by the Respondents herein, aimed at reviewing the Certificate of Order Against the Government for being at odds with the substantive judgment. In a ruling dated 30/09/2021, the Respondents prevailed. This Court ruled that:As the Petitioners readily concede, the judgment does not specify the manner in which the “other IDPs” were compensated. The extracted decree is faithful to this rendering of the judgment: it also does not contain any specificities of the manner of compensation. This must be because the judgment contained none. However, the Certificate of Order Against the Government, after reproducing the order in the judgment verbatim proceeds to add a paragraph which it describes as “particulars” and then adds the payment of Kshs. 2,415,000 as well as allocation of 2 ¼ acres of land to each Petitioner.There is no doubt that these particulars are not derived from the decree. Neither are they derived directly from the judgment dated 30/09/2016. They are, to be fair, deduced from a reading of paragraph 31 of the Petition read with the second order in the judgment while utilizing a fair amount of literary licence. I say literary licence because in her analysis in the judgment the Learned Judge plainly found that the “other IDPs” had been compensated by the Government but did not make a specific finding akin to paragraph 31 of the Petition. The Court, therefore, made no specific finding on the manner the “other IDPs” had been compensated.

7. The Court, therefore, declined to review the judgment in the Petition and carved out the particulars included in the Certificate of Order Against the Government.

8. This background information, unfortunately, disposes the present Judicial Review Application on behalf of the Applicants. The Application seeks the following prayers:1. That the order of mandamus do issue compelling the Principal Secretary, State Department of Planning, Ministry of Devolution and Planning and the Principal Secretary, Ministry of Finance & the National Treasury to pay to the ex parte application the judgment debt in the sum of Ksh 2,415,000/= allocate ex parte applicants 2 ¼ acres of land to each ex parte applicant and pay to the ex parte applicants costs which have been taxed and certified by the Registrar at Ksh 1,599,549/= together with all accrued interest at 14% per annum from the 10th day of October, 2017 until the date of payment, arising from the decree of this Court issued from 30th September, 2016 in Peter O. Nyakundi & 68 Others Vs The Principal Secretary, State Department of Planning, Ministry of Devolution and planning Commissioner of Police & 3 Others Petition No. 24 of 2015. 2.That the Respondents pay the ex parte Applicants’ costs of this Application.

9. It is readily obvious that the orders sought cannot be granted. This is because, as per the Ruling dated 30/09/2021, the particulars contained in the Certificate of Costs Against the Judgment, were carved off. And the judgment, as delivered in Petition No. 24 of 2015 and the Certificate of Costs Against the Government, as it remained after the ruling dated 30/09/2021, is incapable of being enforced by an order of mandamus as the Applicants request. They both are, as the Applicants freely admitted in their post-judgment Application in Petition No. 24 of 2015 insufficiently specific to be enforced by an order for mandamus.

10. The result is that the Judicial Review Application herein must fail. It is hereby dismissed.

11. There will be no order as to costs: each party will bear its own costs.

12. Orders accordingly.

DATED AND DELIVERED AT NAKURU THIS 14THDAY OF JULY, 2022………………JOEL NGUGIJUDGE