BARASA KUNDU NYUKURI VS State Law AND Principal Secretary Correctional Services

1. The Notice of motion dated 29^th April 2024 was filed pursuant to leave of court granted on 24^th April 2024, permitting the applicant to apply for judicial review orders of mandamus to compel the 1^st respondent Principal Secretary, Ministry of Interior and Coordination of National Government to settle decree  in Nairobi HC JR E1089 of 2020 Republic v the Director of Public Prosecutions & 2 others  Exparte Barasa Kundu Nyukuri,  in the sum of Kshs 1,543,758 being costs awarded in the said matter to the exparte applicant who is the applicant herein, vide certificate of order of costs against the government dated 18^th December, 2023.
2. The applicant also prays for costs of this application.
3. The application is supported by the grounds on the face of the Notice of Motion, the statutory statement and the verifying affidavit sworn by the applicant on the 2^nd April, 2024.
4. The applicant’s case is that following the decision by the Director of Public Prosecutions and the DCI to institute criminal proceedings against him in Kibera CMCR Case NO. E842 of 2020, the applicant challenged that prosecution vide HC JR No. E1089 of 2020 which challenge was successful with the court quashing the criminal proceedings and prohibited the respondents therein from charging the applicant with offences relating to possession of file Reference No. CS/CO/OL in respect of budget responses of 2020-2021 for public administration and ICT respecting Bungoma County Assembly. That the Court also awarded the applicant costs of the application.
5. That subsequently, the applicant filed his bill of costs which were taxed and a certificate of costs issued dated 23^rd November 2023 following the ruling on taxation dated 14^th November, 2023.
6. That in compliance with section 21 of the Government Proceedings Act, the applicant obtained a certificate of order of costs against the Government dated 18^th December, 2023 and served the same upon the Attorney General vide letter dated 6^th February 2024 demanding for settlement of the taxed costs but that to date, there has been no compliance hence this application for mandamus to compel the Accounting Officer to perform his statutory duty as stipulated in section 21 of the Government Proceedings Act. The judgment, certificate of costs, ruling and certificate of order against the Government are all annexed to the applicant’s affidavit.
7. The respondents filed grounds of opposition dated 18^th March 2025 contending that they have not refused to pay the costs willfully but that they were facing budgetary constraint. That they had sought authority from Treasury to pay and once funds are available, the decrees will be settled hence the orders sought should not be granted at the moment.
8. The application was argued orally with the respective parties’ counsel reiterating their pleadings, with the applicant’s counsel submitting that the respondents do not deny that the costs are unsettled but that they had not demonstrated any efforts made to settle the same.

Analysis and Determination

1. I have considered the exparte applicant’s notice of motion, the supporting documents, statutory statement and verifying affidavit. I have also considered the grounds of opposition and the   respective parties’ advocates oral submissions. The issue for determination is whether the orders sought are available to the exparte applicant.
2. Section 21(4) of the Government Proceedings Act provides:

“ (4) Save  as aforesaid, no execution  or attachment  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 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.”

1. In Kisya Investments Ltd vs Attorney General & Another [2005] 1 KLR 74 the High Court comprising Ibrahim and Visram JJ(as  they were then) held that:

“History and rationale   of government’s immunity from execution arises from the following…Firstly, there has been a policy in respect  of Parliamentary control over  revenue  and this is  three fold  and  is exercised in respect of  (i)  The  raising of revenue (by taxation or borrowing);(ii)Its  expenditure; and (iii)  The audit  of public  accounts.  The satisfaction of decree or judgments is deemed to be an expenditure by Parliament and as  a result of  this must be justified  in law  and  provided for  in the Government’s expenditure.  It is  for this reason  that  Section 32  of the Government Proceedings   Act provides that any  expenditure  incurred  by or  on behalf  of the Government  by reason of this Act  shall be  defrayed out  of the monies provide by Parliament.  Parliamentary control over expenditure is based  upon the  principle  that all  expenditure  must rest  upon legislative authority  and   no payment  out of   public funds  is legal  unless  it is authorized  by statute, and any  unauthorized  payment may  be recovered.  As a result of the foregoing, which was borrowed from the Crown Proceedings Act, 1947 (Section 37) of England, this is a warning that any payment by Government must be covered by some appropriation.  It is said that parliament is very jealous of its   control over the expenditure and this is as it should be.  No ministry or department has any  ready  funds at all times to satisfy  decrees  or judgments- while existence  of claims  and  decrees   may be known to the ministries and departments, they  have to notify  the Ministry  of Finance  and Treasury  of the same   so that  payment is arranged for or provisions made in the government expenditure.  The second  situation, which arises from the above, is  that once  a decree or judgment  is obtained   against the government, it would require some reasonable  time to have it forwarded to the Ministry of Finance, Treasury, Controller and Auditor General etc for scrutiny and  approvals  for it to be  paid from the consolidated   fund.  The Ministries and Departments do not have their “own” funds to settle   such decrees or payments and considering the nature of the government structure, procedures, red tape and large number of claims, this could take a long time.  If execution and  or attachment  against the  government  were allowed, there is no doubt  that the government  will not be  able to pay immediately  upon passing of decrees and  judgments   and  will be  inundated  with executions  and  attachments  of its assets  day  in day out.  Its buildings  will be  attached  and its  plans  and  equipment   will be attached, its  vehicles , aircraft, ships  and boats  will be   attached.  There will be no end to the list of   likely   assets   to be attached   and auctioned by the auctioneer’s hammer.

No government can possibly survive such an onslaught.  The government and therefore  the  state operations  will ground  to a halt  and paralyzed  and  soon the government  will not only be  bankrupt   but its  constitutional and  statutory  duties  will not be  capable  of  performance and  this will  lead  to chaos, anarchy and  the breakdown  of the Rule  of Law.  This is the rationale or the objective of the law that prohibits execution against and attachment of the government assets and property.”

1. In view of the above position which I concur with, the Civil Procedure Rules do not permit execution against the Government including County Governments and therefore the only remedy available  to the decree  holders  against  the  Government  is the remedy of  Judicial Review  by way  of an order  of mandamus to compel  the Government  and  more particularly the Accounting Officer of the relevant State Department to settle   the decree  of the court.
2. Order 29 Rule 2 of the Civil procedure Rules provides that:

“No order against the Government may be made under—

(a)Order 14, rule 4 (Impounding of documents);

(b)Order 22 (Execution of decrees and orders);

(c)Order 23 (Attachment of debts);

(d)Order 40 (Injunctions); and

(e)Order 41 (Appointment of receiver).

1.  In Republic V Attorney General Exparte James Alfred Koroso JR 44/2012 Honourable Odunga J (as he then was) stated:

“…in the present case, the exparte applicant has no other option of realizing the fruits of this judgment since he is barred from executing against the Government.  Apart from mandamus, he has no option of ensuring that the judgment that he has been awarded is realized.  Unless something is done he will forever be left babysitting his barren decree.  This state of affairs cannot be allowed to prevail under out current constitutional dispensation in light of 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  judgments  have been decreed  by  courts of competent  jurisdiction  cannot enjoy  the fruits  of their judgments  due to  road blocks   placed   on the 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 or 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 of 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 case  upon him  by Parliament.  The fact that an 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 recognized that when statutory   duty is   case 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 the 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   employer of the concerned public officer and to uphold the dignity and  authority  of the court.”

1. From the above statutory provisions and judicial pronouncements, it is clear that the only remedy available to a decree holder against the Government is judicial review remedy of mandamus to compel the Accounting Officer of the relevant Ministry or State Department to settle the material decree.
2. In the instant case, the respondents do not dispute the costs as taxed. They, in fact, acknowledge the indebtedness in terms of the certificate of order of costs against the government which is unsettled due to budgetary constraints.
3. It therefore follows that the exparte   applicant who is the decree holder has rights which have crystallized, to enjoy the fruits  of his lawful  judgment  by way of costs awarded to him as a successful litigant and therefore those  rights must  not be  curtailed.  That right must be safeguarded and enforced by the court as espoused in Article 159(2) (a) and (b) of the Constitutionwhich pronounces that justice shall be administered without undue delay and the applicant’s right to access Justice under Article 48 of the Constitution promoted and protected. 
4. Furthermore, there is proprietary interest in a monetary decree or certificate of costs or order for costs issued by a court of competent jurisdiction and therefore where such decree or order is not settled, then, no doubt, the right to protection of property under Article 40 of the Constitution is violated. There can be no better property lawfully acquired than that acquired through court process in an overt manner and due process having been followed.
5. The 1^st respondent is the Accounting Officer of the Ministry against whom the costs were awarded and is therefore under a public statutory duty to  settle  decree or order of  the court issued in favour of the exparte applicant, in order that justice  may at the end  of the day be  served  because   there is  no other remedy  available  to the exparte  applicant. 
6. Since the certificate of order for costs against the government was served upon the respondents in February 2024, there has been no payment received.
7. In view of the foregoing, the 1^st respondent cannot be heard to say that they have no money to settle the certificate of order against the government. They ought to have followed the procedure that was set out in the decision that I have cited above and budgeted for the money and sought approval to pay during the last half or this ending financial year.
8. The grounds of opposition filed by the 2^nd Respondent Attorney General does not demonstrate that the Ministry of Interior was ever advised and that they have since sought out the National Treasury for authority to settle the taxed costs. The respondents’ counsel was submitting from the bar, which this court does not buy in that any efforts have been made to call for the funds to settle these costs.
9. That being the case, the order that commends  itself  in these Judicial  Review  proceedings is a Judicial Review order of mandamus  compelling  the 1^st  respondent principal Secretary, Ministry of Interior and coordination of national government or its successor in title to certificate of order of costs against the Government dated 18^th December, 2023 amounting to Kshs 1,543,758.
10. In the end, I find this application for Judicial Review to be merited and   I proceed to grant and issue the order of Mandamus compelling   the Principal Secretary, who is the Accounting Officer of the Ministry/State Department, Ministry of Interior and Coordination of National Government or its successor in title to settle Ccertificate of order of costs against the Government dated 18th December, 2023 amounting to Kshs 1,543,758.
11. In default of such settlement, the exparte applicant is at liberty to apply.
12. In view of the burden on the tax payer, each party shall bear their own costs of this application, noting that the applicant underpaid the court fees required for judicial review applications which I hereby invoke the provisions of section 96 of the Civil procedure Act and direct him to pay in full within ten days of today.
13. Mention on 24^th June 2025 for further orders and to confirm settlement.

Dated, Signed and Delivered virtually at Nairobi this 14^th Day of May, 2025

R.E. ABURILI

JUDGE