[2022] KEHC 13512 (KLR)

Republic v Speaker, Migori County Assembly & 2 others; James Aggrey Mwamu t/a Mwamu & Co Advocates (Exparte) (Judicial Review 10 of 2020) [2022] KEHC 13512 (KLR) (3 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13512 (KLR)

Republic of Kenya

In the High Court at Kisumu

Judicial Review 10 of 2020

RE Aburili, J

October 3, 2022

Between

Republic

Applicant

and

Speaker, Migori County Assembly

1st Respondent

Clerk, Migori County Assembly Migori

2nd Respondent

County Assembly Public Service Board Migori

3rd Respondent

and

James Aggrey Mwamu t/a Mwamu & Co.Advocates

Exparte

Judgment

1. Before commencing this judicial review application, the exparte applicant/advocate herein James Aggrey Mwamu & Company Advocates obtained leave of court to institute these proceedings against the Clerk of Migori County Assembly of Migori, on 14th July 2021 in these same proceedings.

2. Upon leave being granted to institute judicial review application for orders of Mandamus, the exparte applicant filed the substantive Notice of Motion subject of this judgment on 2/8/2021. The Notice of Motion is dated 30/7/2021. It seeks the following orders:1. Spent2. That the Honourable Court grants an order of Mandamus compelling the Respondent (The Clerk Migori County Assembly) to comply with the judgment of Justice Ochieng dated 4th June 2019 in Misc. No. 103 of 2018 James Aggrey Mwamu T/A Mwamu & Company Advocates Vs Migori County Assembly, requiring them to pay Kshs. 7,519,282. 40 together with interest.a.That in the alternative the court be pleased to order that the 1st and 2nd Respondents be jailed for six months for failure to pay the aforesaid amount together with interest.b.That in the alternative the court be pleased to order for attachment of account number 12…3 (redacted) KCB Migori Branch belonging to the 3rd Respondent.3. Costs of and incidental to this application together with interests and any other order that this Honourable Court deems fit and just to grant in circumstances.

3. The Notice of Motion is predicated on the grounds that:a.The Respondents failed to appreciate the existing and constitutional provisions of law on the right to fair hearing and consequence, thereof under Article 47(sic).b.The applicant’s costs were on 25/7/2018 taxed at Kshs. 7. 519,282. 40. c.They have failed to comply with the decree despite the judgment of the court.d.The rejection and the negligence to pay is deliberate and perpetrated by the Respondent.e.The failure to pay is causing injustice to the Decree holder.

4. The application is supported by the affidavit in support sworn by James Aggrey Mwamu Advocate who is the applicant in the matter. The depositions replicate the prayers sought and the grounds, while annexing the following documents:a.Certificate of costs dated 25/7/2018 as ‘JAM 1’b.Application for judgment on costs as ‘JAM 2’c.Judgment on taxed costs dated 4/6/2019 as ‘JAM 3’d.Order for leave dated 14/7/2021.

5. This application for judicial Review Orders of Mandamus is not opposed by the respondent although they fully participated in the application for leave to apply that gave rise to the ruling/order of 14/7/2021.

6. Before I frame the issues for determination in this application, I must deal with some preliminary but important issues. I observe that the exparte applicant seeks some prayers in the alternative namely, the jailing of the 1st and 2nd Respondents for six months for failure to pay the claimed sums of money together with interest and secondly, the attachment of Account No. 125…3(full details withheld) KCB Migori Branch belonging to the 3rd Respondent.

7. I observe that in the Ruling of 14/7/2021, the learned Judge Fred Ochieng J was clear that the leave granted was only in respect of the 2nd Respondent who is the sole party to this application hence the 1st Respondent cannot by any means be jailed for any default when he is not a party hereto.

8. That notwithstanding, that prayer for jailing a defaulting judgment debtor or public or statutory duty bearer is premature as against the 2nd Respondent as it can only apply where contempt proceedings have been initiated and successfully prosecuted against the holder of that Office of Clerk of County Assembly of Migori.

9. On the prayer for attachment of a KCB Bank account for the County Assembly, it is worth noting that a County Assembly is an organ of a County Government against whom no execution by way of attachment or sale of its property can be made. For the above reasons, the prayers sought in paragraphs 2(a) & (b) of the Notice of Motion dated 30/7/2021 are incapable of being granted. The two alternative payers are hereby dismissed

10. Onto the main prayer for an order of Mandamus compelling the Respondent herein to comply with the orders of 416/2019 in Misc. Application No. 103/2018 and settle the decretal sum of Kshs. 7,519,282. 40.

11. The issues that I must determine are:1. Whether the Respondent is under a public or statutory duty and obligations to satisfy the judgment rendered in favour of the advocate applicant on 4/6/2021 and if so,2. Whether the applicant is entitled to the judicial Review orders of Mandamus as prayed for in the Notice of Motion dated 30/7/2021.

12. Before I resolve the above two issues, I must first and foremost, restate the nature of the remedy of Mandamus as elaborately discussed in the case of Republic Vs Kenya National Examinations Council exparte Gathenyi & Others [1997]eKLR where it was stated as follows:“The order of Mandamus is of 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 practical thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is 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.”

13. From the above decision, it is clear that for this court to grant an order of Mandamus, the Respondent against whom the order is sought must have a statutory or public duty which they have refused or neglected to fulfil or perform.

14. In this case, the Ruling by Hon. Justice F.A Ochieng rendered on 14/6/2021 was clear that there was a public duty owed by the Respondent accounting officer of the County Government of Migori and therefore once the court establishes that such public duty, then the accounting officer is expected to perform the said public duty, as imposed by statute. In this case, the duty is to settle all bonafide debts or as decreed by the court.

15. This is because the law bars decree holders from executing against the Government hence the decree holder may be left remediless with a barren decree unless judicial Review comes in to remedy the situation as no attachment of property of the government can be done in execution of decree. See Republic Vs County Secretary, Nairobi City County & Another exparte Wachira Nderitu Ngugi & Co. Advocates [2010]eKLR.

16. Under Section 21 of the Government Proceedings Act;“(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 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 latter, issue to that person a Certificate in the prescribed from 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 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 interests, if any, lawfully due therein: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 suspected, and if the Certificate has not been issued may order any such direction to be inserted therein.(4)Save as aforesaid, no execution 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.

17. It is important to note that Section 21(5) provides that this section shall, with necessary modification, apply to any civil proceedings by or against a County Government or in any proceedings in connection with any arbitrator in which a county government is a party.

18. I have no doubt in my mind that County Assemblies are organs of the State and are governed by the Government Proceedings Act where any litigation is concerned and involved. See Republic Vs Attorney General & Another exparte Stephen Wanyee Roki [2016]eKLR.

19. I have already pronounced myself on the public duty imposed on the sole Respondent to settle decrees of the court. The question is whether the said duty has crystallized and whether the Respondent has refused, despite demand, in writing to settle the sums due or in a decree to warrant an order of Mandamus to compel performance of such duty to settle the decree.

20. On the statutory duty of accounting officers to settle decrees issued by the court, in Republic Vs Permanent Secretary Ministry of State for Provincial Administration & Internal Security[2012]eKLR, the court had this to say:“In ordinary circumstances, once a Judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regard to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decree for the payment of money or costs had been issued against the government in favour of a litigant, the said decree can only be enforced by way of an order of Mandamus compelling the accounting officer in the relevant Ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Act which provides that payment will be based on a Certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon. Attorney General. The Certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the Certificate of Order against the Government is served on the Hon. Attorney General, Section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon.”

21. The applicant has annexed a Certificate of costs as taxed by the Deputy Registrar on 20th August 2018 in HC Misc. Application No. 103/2018 in the sum of Ksh. 7,519,282. 40. He has also annexed an application dated 8/8/2019 for judgment on the taxed costs. He has also annexed Ruling made on 3/10/2019 entering judgment in favour of the applicant as per the Certificate of costs, as stipulated in Section 51(2) of the Advocates Act.

22. From the affidavit of service sworn by James Aggrey Mwamu Advocate and filed in court on 8/8/2019, the Respondents were served with the Certificate of Taxed costs, before judgment was entered giving effect to the said certificate of costs taxed on 25/6/2018.

23. It follows that the Respondents were made aware of the payable costs and from the court file, they filed an application dated 19/11/2019 seeking for enlargement of time to file an objection to the taxation of 25/6/2018, which application was heard on merit and allowed on 29/4/2022 conditional upon the Respondent filing the objection within seven days of that date and depositing the decretal sum in a joint interest earning account in the names of both parties’ advocates, within 30 days and default, the extension period granted would lapse.

24. There is no evidence to show that the Respondent ever filed objection to the taxation. Neither did they comply with the condition for depositing the decretal sum. The Respondent has also not filed any Replying affidavit or grounds of objection disputing the claim herein.

25. However, there are certain procedural underpinnings that the applicant has not satisfied and these are:1. The applicant has not extracted any decree from the judgment entered by the court on 3/10/2019 to give effect to the Certificate of costs of 25/6/2018. 2.The applicant has not extracted any Certificate of Order against the Government as contemplated under Section 21 of the Government Proceedings Act.

26. The above documents are very critical in execution proceedings against the Government as there must be evidence of service of the decree and Certificate of order against the Government, accompanied by a demand for settlement of decree.

27. A certificate of order against the Government is the final document upon which the Government, in this case, the County Assembly of Migori would be required to settle the decree.

28. From the procedural provisions of Section 21 of the Government Proceedings Act, a duty to settle decree of Certificate of order against the government and therefore execution proceedings by way of Mandamus can only be undertaken thereafter service of a Certificate of Order Against the Government, see Republic Vs Permanent Secretary, Ministry of State for Provincial Administration & Internal Security Exparte Manoah Egunza [2012]eKLR where it was stated:“The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment.”

29. In Republic Vs County Secretary Migori County Government & Another [2019]eKLR the court emphasized the need to comply with the execution procedure under Section 21 of the Government Proceedings Act and I agree that:11. I need not re-emphasized the need for strict compliance with Section 21 of the Act being the law of the land. In this matter I can gather from the record that a Decree and a Certificate of costs in the suit was drawn and issued.I did not set my eyes on any Certificate of order. There is a specific procedure on how a Certificate of order required under the Act is obtained. The procedure is contained in Order 29 of the Civil Procedure Rules. Under Rule 3 thereof, the application is made to the Deputy Registrar in the High Court or to the court in the subordinate court. The format of the Certificate of order is provided in Appendix A. Form No. 22 of the Civil Procedure Rules. Form No. 23 provides the format for a Certificate of costs in the event it is separately issued.12. One of the party obtains the Certificate of order and the certificate of costs, in the event the certificate of costs is obtained separately, together with the decrees, then such a party must satisfy the court of service of those documents upon the party named in the certificates. In this case, there is neither evidence of issuance of the certificates nor service thereof on the Respondents or their advocates.”

30. I concur with the above observations and add, by accepting the explanation given in Maggy Agulo Construction Co. Limited Vs Ministry of Public Health & 4 Others [2020]eKLR where Musyoka J stated that:“An execution process against the Government or its officials which sidesteps Section 21 of the Government Proceedings Act and Order 53 of the Civil Procedure Rules is deficient, irregular and illegal and cannot stand. Consequently, the mode of execution by way of a warrant of arrest of an official of the 3rd Defendant, that was ordered in this case was irregular and contrary to the Government Proceedings Act….”

31. As earlier observed in Republic Vs Permanent Secretary Ministry of State for Provincial Administration & Internal Security exparte Fredrick Manoah Egunza(supra), the Certificate of order against the Government is not only a requirement but it is also a condition precedent to the satisfaction or enforcement of decrees issued against the Government.

32. The applicant has not mentioned anything to do with a decree and Certificate of order against the Government or service of the two named instruments upon the Respondent. As I have stated earlier on, the instruments are lacking in this file.

33. There is a difference between the Certificate of costs, decree and certificate of order against the Government as referred to in Section 21 of the Government Proceedings Act and Order 29 Rule 3 of the Civil Procedure Rules.

34. In my humble view, the omission by the applicant advocate to obtain and serve upon the Respondent a decree and certificate of order against the Government accompanied by a written demand for settlement as dictated by Section 21 of the Government Proceedings Act and Order 29 Rule 3 of the Civil Procedure Rules renders the instant application for Mandamus premature and unsustainable.

35. It follows that this court cannot issue an order of Mandamus directing the Respondent to pay the decretal sum before the prerequisites are met.

36. In other words, the applicant has not satisfied this court on the second test for Mandamus to issue which is the crystallization of the duty to pay. It is not enough that the amount is due. The duty to pay accrues only after the applicant has complied with the process under Section 21 of the Government Proceedings Act whereupon the Certificate of order against the Government must first be obtained and served upon the Respondent before an enforcement action by way of Mandamus as sought in the instant application, can crystalize.

37. For all the above reasons, I find and hold that the relief sought herein is not ripe or available to the applicant at this stage. The application dated for 30/7/2021 is found to be deficient of the requirements under the law. It is premature. It is hereby dismissed with no orders as to costs as the Respondent did not participate in these proceedings. However, dismissal of these proceedings does not preclude the applicant from restarting the process afresh and complying with all procedures under the law to recover his costs, but in a different file.

38. This file is closed.

39. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU, THIS 3RD DAY OF OCTOBER, 2022R.E. ABURILIJUDGE