[2022] KEHC 2388 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

JUDICIAL REVIEW NO. E001 OF 2021

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF

MANDAMUS UNDER ORDER 53 OF THE CIVIL PROCEDURE RULES.

AND

IN THE MATTER OF ARTICLE 47 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF SECTION 21 OF THE GOVERNMENT PROCEEDINGS ACT

AND

IN THE MATTER OF ORDER 29 OF THE CIVIL PROCEDURE RULES 2010

AND

IN THE MATTER OF SECTION 7,8,9,10 AND 11 OF THE FAIR ADMINISTRATION ACTION ACT

BETWEEEN

JIBRIL NOOR T/A BASHIR NOOR ADVOCATES...................1ST APPLICANT

YUSSUF BASHIR T/A BASHIR &

NOOR ADVOCATES....................................................................2ND APPLICANT

VERSUS

WAJIR COUNTY GOVERNMENT........................................1ST RESPONDENT

COUNTY SECRETARY.........................................................2ND RESPONDENT

COUNTY EXECUTIVE COMMITTEE..............................3RD RESPONDENT

JUDGEMENT

1. Leave was granted to the Ex-parte applicants on 1st July 2021 to file their substantive Motion pursuant to an application for leave to institute Judicial review proceedings. The same was filed on the 2nd July 2021 seeking the following Orders;

a.That an Order of mandamus do issue to the Respondents jointly and severally compelling them to pay the applicants the decretal sum of Kshs. Nine Million and Ninety-Six Thousand, Five Hundred and Fifteen (Kshs. 9,096. 515/=) arising from the decree of Hon. Mungenyi Nyaga (SRM) at Wajir Law Courts in Civil Case No. 2 of 2020 delivered on 7th August 2020.

b. The Respondents be condemned to bear the costs of the application.

2. The said application was supported by the affidavit of Jibril Noor sworn on the same date and who stated therein that they filed a plaint in Civil Case No. 2 of 2020 against the Respondents on 17th of February,2020 at Wajir Law Court and the said case determined by Hon. Mugendi Nyaga (SRM) pursuant to a Ruling dated 7th August, 2020.

3. Further and subsequent they obtained a decree and certificate of costs dated 18th September 2020 for the sum of Kshs. 9,096,515/=. And served the decree and certificate of costs on 22nd of September 2020. Pursuant to the Government Proceedings Act, they obtained a certificate of order against the Government dated 12th March 2021 and the said order served the same day. Three (3) months at the time of filing the affidavit since service of the order but the Respondents had refused to comply despite several attempts to have them settle the claim.

4. On their part, the Respondents in opposing the application filed grounds of opposition dated 12th October 2021 raising the following grounds;

a.That the order of mandamus sought by the applicant is improperly brought under the Fair Administrative Action Act, 2015.

b.Applicants and Respondents were in an advocate- client relationship hence the right forum for payment of professional fees is before the taxing master in the appropriate court before any judicial proceedings.

c.Ex-parteapplicants deliberately by-passed Order 10 Rule 8 of the Civil Procedure Rules obtaining judgement in Wajir Cmcc No. 2 of 2020 Jibril Noor T/A Bashir & Noor Advocates & Another v County Government of Wajir & 2 Others.

5. The Respondents also filed a Replying affidavit dated 5th of November 2021 sworn by Abdulahi Hassan Maalim, the Respondent’s County Secretary, wherein he stated that the 1st Respondent was not familiar with the initial suit since they had not been served with a demand letter, notice of intention to sue, the pleadings and that judgement was delivered in total disregard to the respondents right to defend.

6. Further, the 1st Respondent, being a defendant, the trial court, should not have been entered judgement against it as request for judgement in default of attendance should have been pursuant to Order 10 Rule 8 of the Civil Procedure Rules.

The suit cropped from legal services agreement dated 29th September 2015 between Wajir County Government & Abdi Bashir Noor advocates in respect to PMCC No. 18 of 2015. Ahmed Abdille V County Government of Wajir & 3 Others & legal services agreement dated 9th October 2015 between Wajir County Government and Abdi Bashir & Noor advocates in respect to Civil Suit No. 3 of 2015 Tanzil Company Limited versus Wajir County & Anor.

7. In response to the Respondents replying affidavit the applicants filed a supplementary affidavit dated 24th November 2021 sworn by Jibril Noor.In the same were annexed evidence showing proof of service of a demand note, the plaint and summons to enter appearance on 9th November 2020. Further, in default of the Respondents appearance in the trial court they filed an application seeking leave for entry of judgement against the Respondent which was granted on 7th August 2020. Thereafter being aware of the suit the respondents appointed an advocate; Messrs. Harry & Associates advocates who entered appearance, but neither challenged nor appealed against the lower court’s decision.

8. As directed by the court this matter proceeded by way of written submissions. Both parties filed their respected submissions and list of authorities and highlighted the same on 15th December 2021.

APPLICANTS SUBMISSIONS

The issues raised by the Respondents ought to be canvassed at the appellate stage, as the matter before court is on failure by the Respondents to discharge their public duty of honoring a decree of the court and not the process of the trial in the lower Court. They relied on the provisions of Sections 8 and 7 of the Fair Administration Actand Section 21 of the Government Proceedings Act,the case ofRepublic versus Principal Secretary, Ministry of Internal Security & Another exparte Schon Noorani & Another [2018] Eklr

THE RESPONDENTS’ SUBMISSIONS

The trial court’s judgement was improper as it did not abide with the provisions of Order 10 Rule 8 of the Civil Procedure Rules, no service of the pleadings at the trial was effected pursuant to the provisions of Section 13A of the Government Proceedings Act,and other failure to observe requisite requirements. The Respondent cited the cases of Maggy Agulo Construction Co. Ltd v Ministry of Public Health & 4 Others [2020] eKLR, Republic versus Principal Secretary, Ministry of Internal Security & Another exparte Schon Noorani & Another [2018] eKLR, Republic v County Secretary Migori County Government & Anor [2019] eKLR.

ANALYSIS AND DETERMINATION

9. The Court has considered the affidavits sworn by the parties and their respective submissions. The main issues raised by the parties are;

i. whether the application before court is proper &

ii.whether the ex-parte applicants have established grounds for this court to issue an order of mandamus.

10. The applicants sought leave vide chamber summons dated 26th May 2021. Attached to the chamber summons was the statutory statement of facts and an affidavit. The chamber summons was served upon the Respondents on 22nd February 2021 and an affidavit of service duly filed though it was an Ex-parte application. The Respondents are therefore deemed to have been well aware of the same including the accompanying statutory statement of facts. Upon hearing the chamber summons the court on 1st of July 2021 granted leave to the applicant to file the substantive motion. The same was filed on 2nd July, 2021 and brought pursuant to a host pf provisions which included; Article 47 of the Constitution 2010, Section 21 of the Government proceedings Act, Order 29 of the Civil Procedure rules, and Section 7,8,9,10, & 11 of the Fair Administrative Action Act. The Respondent describes the referencing to many of the sections of the law mentioned above as an application having been brought “under a mishmash of laws”. That as it may, the Notice of Motion subject of this Judgement and the preceding application were well brought in line with the provisions of Order 53 of the Civil Procedure Rules. And any other issue would remain to be a technicality that need not crowd the mind of the court.

11. Judicial Review is more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision. As long as the processes followed by the decision-maker are proper, and the decision is within the confines of the law, a Judicial Review Court will not interfere.

12. An Order of Mandamus is a judicial command requiring the performance of a specific duty which has not been performed.

In Republic v National Employment Authority & 3 others Ex-Parte Middle East Consultancy Services Limited [2018] eKLRthe court held as follows;

“……. In Judicial Review, the reviewing court cannot set aside a decision merely because it believes that the decision was wrong on the merits. A court of review is concerned only with the lawfulness of the process by which the decision was arrived at, and can set it aside only if that process was flawed in certain defined and limited respects. The role of the Court in Judicial Review is supervisory. It is not an appeal and should not attempt to adopt the 'forbidden appellate approach'…….”

13. Similarly inRepublic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another [2018] eKLR a case cited by both parties the court held as follows;

“27. Mandamus is a discretionary remedy, which a court may refuse to grant even when the requisite grounds for it exist. The Court has to weigh one thing against another to see whether or not the remedy is the most efficacious in the circumstances obtaining. The discretion of the Court being a judicial one must be exercised on the basis of evidence and sound legal principles.

28. In the present case, the complaint arises out of a decree arising from the decision rendered by Ang'awa J in Civil Appeal No. 667 of 2000. This Court has had the benefit of reading the said decision and the Certificate of Order against the Government. The Respondents do not dispute the existence of the said decree or order. They do not dispute having been served with the said Certificate. They have raised what I described above as grounds of appeal not grounds in opposition of an application for Mandamus.”

14. In this case the Respondents have conceded that they partially participated in the trial court hence were aware of the award issued in the trial court prior to filing of these proceedings. In the trial court the applicants upon proof of service and in line with Order 10 Rule 8 of the Civil Procedure Rulessought leave for entry of judgement against the Respondents. The aforesaid judgement was entered on 7th August 2020. The decree was issued on 18th September 2020. The decree and demand for payment was served upon the Respondents on 25th of September 2020. A further demand for payment was issued on 6th of November 2019 and a Certificate of Order against the Government issued and served on 12/3/2021.

15. As rightly cited in the above authorities’ judicial review is concerned

only with the lawfulness of the process by which the decision was arrived at. The Respondents have raised grounds of opposition that border on grounds for an appeal. The applicants have exhibited the steps they have taken to seek the payment of the decretal sum from the Respondents. The payment of the decretal sum is a pubic duty to be performed by the Respondent. The applicants have satisfied all the conditions by issuance of their prior demands for performance and granting the Respondents reasonable time to comply.

14. The Orders sought are viable as there is no other remedy available to the applicants. There being no bar to the relief sought, on a balance of convenience, I find this a proper case to issue the Orders sought as follows; -

(i) That an Order of mandamus be and is hereby issued to the Respondents jointly and severally compelling them to pay the applicants the decretal sum of Kenya Shillings Nine Million and Ninety-Six Thousand, Five Hundred and Fifteen (Kshs. 9,096. 515/=) arising from the decree of Hon. Mungenyi Nyaga (SRM) at Wajir Law Courts in Civil Case No. 2 of 2020 delivered on 7th August 2020.

(ii) The Respondents shall bear the costs of the application.

DATED SIGNED & DELIVERED IN GARISSA THIS 10TH DAY OF FEBRUARY 2022

ALI-ARONI

JUDGE

In the presence of

Advocate for the Applicant..........................................

Advocate for the Respondent........................................

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