[2022] KEHC 13555 (KLR)

Republic v PS Environment and Forestry & another; BEA Ltd (Exparte Applicant) (Judicial Review Miscellaneous Application E148 of 2021) [2022] KEHC 13555 (KLR) (Judicial Review) (15 September 2022) (Judgment)

Neutral citation: [2022] KEHC 13555 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E148 of 2021

AK Ndung'u, J

September 15, 2022

Between

Republic

Applicant

and

Principal Secretary, Ministry of Environment and Forestry

1st Respondent

Attorney General

2nd Respondent

and

BEA International Ltdd

Exparte Applicant

Judgment

1. The amended motion before court is dated March 30, 2022 filed under section 8 and 9 of the Law Reform Act and Order 53 rules 1(1) and 2 of the Civil Procedure Rules,2010. The primary prayer is couched as follows:“This honourable court do grant an order of mandamuscompelling the 1st respondent to pay to theex-parte applicanta.The sum of Kshs 600,607,887. 10 being the decretal amount as at July 17, 2020 as per the certificate of order dated August 21, 2020. b.Interest on (a) above at the rate of 12% per annum from July 17, 2020 till payment in full as well as costs being the decretal amount owed to the applicant as a result of the award issued on September 5, 2017 by Chartered Arbitrator, Kyalo Mbobu, In The MatterOfAn ArbitrationBetween Bea International v The Honourable Attorney General and adopted and enforced as the judgement of this court in the ruling dated July 17, 2020 in High Court At Nairobi Commercial & Tax Division Miscellaneous Cause No 442 OF 2017 issued by Lady Justice Muigai.”

2. According to the verifying affidavit sworn by Patrick Karani in support of the application, the ex parte applicant obtained a decree against the respondents for the sum of Kshs 600,607,887. 10 upon the dismissal of the 2nd respondent’s applications seeking to set aside the final arbitral award and leave to file an appeal against the said award made in favour of the applicant In The Matter Of AnArbitration Between Bea International v The Honourable Attorney General.

3. The said sum is detailed as follows;a.the sum of Kshs 379, 500,000. 00 being the decretal amount owed to it as a result of the award issued on September 5, 2017 by Chartered Arbitrator, Kyalo Mbobu, In The Matter Of An Arbitration Between Bea International v The Honourable Attorney General; and adopted and enforced as the judgement of this court in the ruling dated July 17, 2020 in High Court At Nairobi Commercial & Tax Division Miscellaneous Cause No 442 Of 2017;b.interest on the sum in (a) above at 12% per annum from October 30, 2015, to July 17, 2020 ;c.costs of the arbitration being the sum of Kshs 3,613,300. 00;d.interest on (c) above at the rate of 12% per annum from September 5, 2017 to July 17, 2020;e.the costs of the reference assessed at Kshs 1,044,000. 00;f.interest on (e) above at 12% per annum from September 5, 2015 to July 17, 2020. ”

4. According to Karani, the respondents have failed to settle the decretal sum despite having been served with a decree and certificate of order against government and several demands having been made for the said sum. Further, it is urged that negotiations held where the respondents offered to pay the principal sum of Kshs 379,500,000 plus half of the arbitral costs at Kshs 1,806,650/=and as the ex parte Applicant was not willing to forego interest, it gave a counter-offer of waiving interest to a maximum of 12. 5% of the interest totaling to Kshs 206,608,766. 50/=.

5. The respondents in response acknowledge that indeed the Ministry was served with a copy of the decree and certificate of order against the Government from the applicant dated July 17, 2020 and August 21, 2020 respectively, however the Ministry has been unable to pay the said amount due to budgetary constraints faced by the Government due to theCOVID-19 pandemic.

Parties Submissions 6. Learned counsel for the ex-parteapplicant submitted that pursuant to the decision in Republic v Attorney General & another Ex parte Orbit Chemicals Limited [2017] Eklr, the 1st respondent being the Permanent Secretary of the Ministry of Environment and Forestry is under a statutory duty to pay the decretal sum.

7. On the order of mandamus and the same being the only recourse available to the ex parte applicant the cases ofShah v Attorney General (No 3) Kampala HCMC No 31 of1969 [1970] EA 543 and Republic v the Attorney_ General and Another ex parte James Alfred Koroso [2013] eKLR were cited respectively.

8. Learned counsel for the respondents cited the cases of Republic v County Secretary, Nairobi City County & 3 others; Koceyo & Co. Advocates (Ex Parte) [2020] eKLR andRepublic v Principal Secretary, Ministry of Defence & another Ex Parte David Gitau Njau & 9 others [2018]eKLR on execution proceedings against a government or public authority under the Government Proceedings Act.

9. It was further submitted that the respondents do not dispute that the 1st respondent is under a statutory duty to satisfy the said decree what has hindered the performance of this duty is lack of adequate budgetary allocation by the National Treasury.

Analysis And Determination 10. I have considered the arguments advanced by the parties herein. The issue for determination is whether an order of mandamus should issue as prayed in the ex parteapplicant’s application.

11. It is settled law that before an order of mandamus can be issued, an applicant must abide by the procedure in section 21 of Government Proceedings Act which provides:“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.”

12. Section 21 (3) provides as follows;“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.”

13. The respondents before this court contend that despite having been served with the decree and certificate of order against the government the only reason the 1st respondent has not settled the decree herein is that, although the 1st respondent, who is the accounting officer in the ministry concerned, has written several letters to the National Treasury requesting for budgetary allocation so as to facilitate payment the National Treasury has failed to factor in the same hence the Ministry could not settle the monies due.

14. The court in the case of Republic v Principal Secretary, Ministry of Defence & another Ex Parte David Gitau Njau & 9 others [2018]eKLR held as follows;“I associate with the said decision and it is therefore my view that settlement of decretal sum by the Government and its agencies does not necessarily depend on the availability of funds. This position was appreciated by this court in Wachira Nderitu, Ngugi & Co Advocates v The Town Clerk, City Council of Nairobi Miscellaneous Application No 354 of 2012 in which this court pronounced itself as follows:“I have however considered the other issues raised by the respondent with respect to its debt portfolio as against its financial resources. It is neither in the interest of this court nor that of the ex parte applicant that the respondent should be brought to its knees. The court appreciates and it is a matter of judicial notice that most of the local authorities are reeling under the weight of the debts accrued by their predecessors and that they are trying to find their footing in the current governmental set up. Accordingly, I am satisfied based on the material on record that the respondent ought to be given some breathing space to arrange its finances and settle the sum due herein.”In my view a party facing financial constraints is at liberty to move the court for appropriate orders which would enable it to settle its obligations while staying afloat. That however, is not a reason for one to evade its responsibility to settle such obligations. In other words, financial difficulty is only a consideration when it comes to determining the mode of settlement of a decree but is not a basis for declining to compel the respondent to settle a sum decreed by the court to be due from it.In my view it is the obligation of the government department concerned in conjunction with the Treasury to ensure that funds are allocated towards the settlement of the liabilities owed by the Government. The failure to do so amounts to failure to perform a statutory obligation hence warrants the grant of an order of mandamus. Whereas difficulties in the settlement of decretal sum may be a basis for seeking accommodation with respect to settlement, such difficulties cannot be a basis for seeking that an otherwise merited application for mandamus ought not to be granted.”

15. I am in agreement with the above decision as in my opinion settlement of court decrees ought not to be subject to the availability of funds. Financial constraints should only be taken into account when deciding how to settle a decree; they should not be used as an excuse for refusing to compel the respondent to pay a sum that the court has determined is owed.

16. Having determined the above the next question is whether the order for mandamus is merited. The circumstances under which a judicial review order of mandamus can be issued was discussed in the case Republic v Kenya National Examinations Council Ex Parte Gathenji & 8 Others Civil Appeal No 234 of 1996, where the Court of Appeal cited with approval, Halsbury’s Law of England, 4thEdition. Vol 7 p 111 para 89 thus:“The order of mandamus is of most extensive remedial nature and is in form, of 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.”...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.”

17. The court in the case of Republic v The Attorney General & Another ex parte James Alfred Koroso (2013)eKLR held as follows;“…in the present case the ex parte applicant has no other option of realizing 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 realized. 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.”

18. In the premises, I am satisfied that the ex parte applicant has made a case for the grant of an order of mandamus and I hereby grant the same in terms of prayer (1) of the notice of motion dated March 30, 2022. The Ex parte applicant will also have costs of this application.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY SEPTEMBER, 2022A. K. NDUNG'UJUDGE