EDWARD KINGS MAINA & ANOTHER VS THE GOVERNMENT PRINTER & OTHERS

                                                              INDEPENDENT ELECTORAL &

Introduction
1. By an Amended Notice of Motion dated 28th July 2022, filed pursuant to Order 53 rules 1(3) of the Civil Procedure Rules and Section 8 of the Law Reform Act chapter 26, The Public Finance Management Act 2012, The County Finance Act 2012,  The Prevention of Organized Crimes Act, The Ethics And public officer Act 2012,The Evidence Act chapter 80, plus Articles 1, 3(1), 10, 19-23(1), 25(1), 33, 35, 40, 43, 47, 48, 50, 96, 98, 109-113, 159, 165(3), 174, 175, 179-181, 183, 186-190, 201-203, 205, 207, 212, 214, 214-229,258-260 and the 4th Schedule to the Constitution 2010 and all other enabling provision of the law including inherent jurisdiction of the Court.

2. The Ex-parte Applicants sought for the following orders;
i. That, the instant Notice of Motion Application be certified urgent and be determined with applicable expedition before the 09.08.2022. KANA

ii. That, the Leave of the Court granted on 6.7.2022 amended on 12.07.2022 to apply for Orders of mandamus and for Orders of Prohibition to act stay.

iii. That, the Memorandum of Appearance by Caleb B Nyamwange The County Attorney of Nakuru acting for Lee Maiyan Kinyanjui the 4th Respondent be and is hereby out forthwith ab initio with costs at the higher scale.

iv. That, the Honorable Trial court be and is hereby at liberty and pleased to give and issue: -
a) The Orders of Mandamus compelling the 1st and 2nd Respondents excluding the names of the 4th, 5th, & 6th Respondents in the declaration of the Results of the Election of the Governor of Nakuru County during the General Election on 09.08.2022.
b) The Orders of Mandamus compelling the 4th 5th & 6th Respondents furnishing filing and publishing the details of any payments and remittances of the claims of the pending bills under The Public Finance Management Act 2012 over the claims making the pending Bills in County of Nakuru since 2013, including those of Matra International Associates for further Court Orders and/or directions.
c) The Orders of Prohibition refraining the 1st Respondent not to publish the whatsoever the declaration of the names of the 4th, 5th and the 6th Respondents jointly and severally as candidate for the Election of The Governor County of Nakuru during the General Elections scheduled for 09.08.2022.
d) The Orders of Prohibition refraining the 2nd & 3rd Respondent from publishing the names of the 4th Respondent the 5th Respondent and the 6th the Respondents in General Elections Results on 09.08.2022 in The Kenya Gazette and/or in Form 34A & in Form 34B of the General Elections Act and Regulation 87(1(a&b)) of The Elections (General) Regulation 2017 as eligible candidates for election as Governor County of Nakuru during the General Elections scheduled for 09.08.2022.

v. That, the Costs of the application be and is hereby provided at the higher scale under The Remuneration Order.
3. The Ex-parte Applicants grounded the motion on a cocktail of over thirty-nine (39) grounds as follows;
i. That, the Honourable Trial Court on 26.07.2022 granted leave to amend the Notice of Motion application filed on 6.7.2022.

ii. That, the Honourable Trial Court on 26.07.2022 granted leave to amend the Notice of Motion application filed on 6.7.2022.

iii. That, this Notice of Motion Application flow from the leave granted on 06.07.2022 and re-issued on 12.07.2022 by The Honourable Trial Court.

iv. That, the respondents herein are duly served with: -
a. Copy of the leave issued by this Honourable Trial Court on 06.07.2022 reissued on 12.07.2022;
b. Copy of the Chamber Summons Application basis of the leave of the Court.
c. Copy of the Statement of Facts;
d. Copy of the Verifying Affidavit;
the genesis of the Court Orders issued on 06.07.2022 was reissued on 12.7.2022.
v. That, the leave issued by this Honourable Court on 06.07.2022 was reissued on 12.07.2022 without participation of the applicants at all.

vi. That, Lee Maiyan Kinyanjui is the outgoing Governor County of Nakuru elected on 08.08.2017.

vii. That, Lee Maiyan Kinyanjui is responsible under The Constitution 2010 and applicable relevant laws including Public Finance Management Act 2012 for the Execution of the Development Policies and funding for posterity for and within The County of Nakuru.

viii. That, Susan Wakarura Kihika the outgoing Senator County of Nakuru elected on 08.08.2017.

ix. That, James Kiarie Mungai was the Senator County of Nakuru during the period 2013 to 2017.

x. That, both the Auditor General Reports for 2021 and the Controller of Budget Report for Fiscal Year 2015/2016 to Fiscal Year 2020/2021 condemn Lee Maiyan Kinyanjui enjoined with Susan Wakarura Kihika with abuse breach and misuse of the Public Finance Management Act 2012 vis a vis the Devolution Financial Allocations of Nakuru.

xi. That, Lee Maiyan Kinyanjui enjoined with Susan Wakarura Kihika have failed and/or refused to settle the Pending Bits owed to residents of County of Nakuru including the Pending-bills of Matra International Associates wef 2013 in total naked and reckless impunity exhibiting abuse breach and misuse of the Public Finance Management Act 2102 vis-à-vis the violation of Applicable Articles under The Constitution of Kenya 2010 to defeat posterity under Devolution regimes on Financial Allocations to County of Nakuru.

xii. That, Lee Maiyan Kinyanjui enjoined with Susan Wakarura Kihika have persistently returned Kshs 4.28Billion on average per year during the period 2017 to 2021 to Treasury for the period 2017-2018 to 2020/2021while supplying Water laden with 5% to 10% Flouride contained in the water supplied at the behest of declaration by Lee Maiyan Kinyanjui at 10.45pm on 19.06.2022 at Midland Hotel Nakuru City during the Debate by Candidates for Election of Governor for County of Nakuru.

xiii. That, Lee Maiyan Kinyanjui enjoined with Susan Wakarura Kihika have persistently returned Kshs 4.28Billion on average per year during the period 2017 to 2021 to Treasury for the period 2017-2018 to 2020/2021without removing the 5% to 10% Flouride contained in the water supplied against the World Health Organisation acceptable 16% subjecting The Children born and raisedwithin Nakuru to Brown Teeth and damaged bones at the behest of declaration by Lee Maiyan Kinyanjui at 10.45pm on 19.06.2022 at Midland Hotel Nakuru City during the Debate by Candidates for Election of Governor for County of Nakuru.

xiv. That, the Senator is responsible under The Constitution 2010 and applicable relevant laws including Public Finance Management Act 2012 for the oversight role over the Execution by the Governor over the Development Policies and funding for posterity for and within The County of Nakuru under the Public Finance Management Act 2102 vis- à-vis the Constitution of Kenya 2010.

xv. That, James Kiarie Mungai failed and/or refused to enforce the implementation the Public Finance Management Act 2012 and/or The Constitution of Kenya 2010 during the period 2013 to 2017.

xvi. That, Lee Maiyan Kinyanjui and Susan Wakarura Kihika have abused office, misused public office breached each and every laws and violated every applicable Articles under The Constitution to deny and/or sabotage economic development and posterity of County of Nakuru.

xvii. That, Lee Maiyan Kinyanjui and Susan Wakarura Kihika have failed and/or refused to account for the 20 Street Children he abducted sometimes in December 1019 from Streets of Nakuru City and dumped into Torongo Forect after Eldama Ravine killing about six(6).

xviii. That, Lee Maiyan Kinyanjui and Susan Wakarura Kihika have failed and/or refused to develop all weather sheds at the new Matatu Stage within The Railway side after Rail Bridge within Nakuru City yet returns Kshs 4.28Billion per year on average for the period 2017/2018 to 2020/2021.

xix. That, Lee Maiyan Kinyanjui and Susan Wakarura Kihika have failed and/or refused to enforce implement and perpetrate Devolution as enshrined under The Constitution of Kenya 2010 and the Public Finance Management Act 2012(Rev).

xx. That, Lee Maiyan Kinyanjui and Susan Wakarura Kihika have maintained to provide drinking Water laden with 5% to 10% fluoride to the public resident including the voters of County of Nakuru in naked and vexatious breach of the tenets of the World Health Organisation and in naked violation of Articles 43 of The Constitution of Kenya 2010 and the Public Finance Management Act 2012(Rev).

xxi. That, Lee Maiyan Kinyanjui and Susan Wakarura Kihika have offered as candidate for the Election for The Governor County of Nakuru for the General Elections scheduled for 09.08.2022 is scheduled to be published any time before Friday the 6th day July 2022.

xxii. That, Lee Maiyan Kinyanjui and Susan Wakarura have offered as candidate for the Election for The Governor County of Nakuru for the General Elections scheduled for 09.08.2022 is scheduled to be published any time before Friday the 6th day July 2022.

xxiii. That, the publication of the list of Candidates including the details of Lee Malyan Kinyanjui and Susan Wakarura as candidates for the Election for The Governor County of Nakuru for the General Elections scheduled for 09.08.2022 is scheduled to be published any time before Friday the 6th day July 2022.

xxiv. That, the publication of the Ballot Paper containing the details of Lee Maiyan Kinyanjui and Susan Wakarura will occur after the publication of the Kenya Gazette

xxv. That, the publication of the Ballot paper and the Kenya Gazette containing the details of Lee Maiyan Kinyanjui and Susan Wakarura as candidate for the election of Governor County of Nakuru will perpetrate their track records on violation of the Applicable relevant articles of the Constitution and the applicable relevant provisions of The Public Finance Management Act 2012.

xxvi. That, Lee Malyan Kinyanjul and Susan Wakarura have colluded and conspired to deceitfully and fraudulently exploit their unfettered abuse and misuse as well as their naked track records exhibiting naked and repetitive abuse and misuse of public office and violation of the applicable Articles of the Constitution 2010 including naked and repetitive breach of the applicable relevant provisions of inter alia the Public Finance Management Act 2012 evidenced by the track records under The Controller of Budgets exhibiting their failure to spend whatever annual Allocation by Resources Allocation Commission to the County of Nakuru under The Devolution syndrome thus denying County of Nakuru its rightful economic posterity which is the unfettered violation of Articles 1,2,10,19-23(1) 25(1) 43 47,48,50,159,172-1928 200-2013 of The Constitution; The Water Act; Public Health Act and World Heath Protocols regimes with impunity over the last five Years ending 30.06.2022.

xxvii. That,equity and justice does not nurture and will not suffer to nurture the track records of Lee Maiyan Kinyanjui and Susan Wakarura designed to exploit their unfettered abuse and misuse of the laws as well as violation the constitution of Kenya 2010 including naked and repetitive breach of thee applicable relevant provisions of inter alia the Public Finance Management Act 2012 with impunity of every applicable Provisions of the Constitution.

xxviii. That, the track records of Lee Maiyan Kinyanjui and Susan Wakarura Kihika have failed to spend on average Kshs 4,28Billion per year wef 2017/2018 Fiscal Year pursuant to the Annual Reports published by The Controller of Budgets and have refused to settle the pending Bills claim filed by The Applicant Subject despite him filing quarterly demands every fiscal year.

xxix. That, the applicant subject have for the past five years filed claim letter after claim letter addressed to The Governor on the claim of Kshs 6,734,367 pending Bills pursuant to the Report of the Transition Authority, The Senior Accountant Municipal Council of Nakuru and The Main Council Committee of the Municipal Council of Nakuru asserting the confirmation on the unsettled sum Kahs 6,734,367 Pending Bills unsettled w.e.f 2012.

xxx. That, the applicant subject have a track records of letters demanding the intervention of The Outgoing Governor one certain Lee Maiyan Kinyanjui who enjoined by Susan Wakarura Kihika the outgoing Senator have failed to respond to on the unsettled claim sum Kshs 6,734,367 yet the County has recorded a Cash Balance sum on average Kshs 4,28Billion per year w.e.f 2017/2018 Fiscal Year pursuant to the Annual Reports published by The Controller of Budgets and have refused to settle the pending Bills claim filed by The Applicant Subject despite him filing quarterly demands every fiscal year.

xxxi. That, the instant Judicial Review Application will guarantee that the Constitution of Kenya 2010 and The Public Financial Management Act 2012 will not be abused misused breached or violated and not rendered nugatory with naked repetitive and vexatious impunity at the behest of abuse misuse and violation committed by Lee Malyan Kinyanjui enjoined by Susan Wakarura Kihika.

xxxii. That, the Report of the Auditor General and The Controller of Budgets exhibit evidence enough on the track records of Abuse of Court Process, Abuse and misuse of Public office breach of Applicable relevant laws and violation with naked repetitive unfettered and vexatious impunity of the Public Financial Management Act 2012 and violation of the Constitution of Kenya 2010 by Lee Maiyan Kinyanjui the 4th Respondent enjoined by Susan Wakarura the 5th Respondent and James Kiarie Mungai the 6th  Respondent..

xxxiii. That, the track records of Lee Maiyan Kinyanjui; Susan Wakarura Kihika and James Kiarie Mungai have abused misused breached each and every Statute and violated the Constitution with naked impunity and do not deserve any protection under the applicable relevant statutes and/or the Constitution.

xxxiv. That, the instant application is not any abuse of court process, frivolous vexatious or dilatory nor a violation of the Constitution of Kenya 2010.

xxxv. That, the Honourable Trial Court is functus Officio the applicable relevant Articles of the Constitution and the applicable Relevant provisions of The Public Finance Management Act 2012 which is already violated and breached by Lee Maiyan Kinyanjui the 4th Respondent enjoined by Susan Wakarura the 5th Respondent and James Kiarie Mungai the 6th Respondent.

xxxvi. That, this Notice of Motion Application flow from and is supported by:
a) The Notice to the Deputy Registrar,
b) The Chamber Summons
c) The Statement of Facts;
d) The Verifying Affidavit sworn by Edward Kings Onyancha Maina,
e) The Verifying Affidavit sworn by Joseph Matu Nganga;
and any further oral submissions to be tendered during the determination of this instant Amended the Notice of Motion.

xxxvii. That, the further oral grounds to be adduced during the said same Application for Leave of the Court for the filing of the Judicial Review Orders of Mandamus and Prohibition targeted at both The Government Printer and the Independent Electoral Boundaries Commission cum IEBC for The General Elections scheduled for 09.08.2022 for the election of amongst others Lee Maiyan Kinyanjui and/or Susan Wakarura Kihika as Governor County of Nakuru.

xxxviii. That, this Notice of Motion Application relate to the General Elections scheduled 09.08.2022

4. On 24th April 2023, Justice H.K Chemitei allowed an application for recusal by the Ex-parte Applicants.

5. This Court had directed that All notices of Preliminary Objections shall be concurrently heard together with the Notice of motion dated 28th July 2023, the Ex-Parte Applicants were granted a further thirty (30) days to file submissions and the Respondents were to file their written submissions within forty-five (45) days.

6. On the 13th October 2023 the Ex-parte Applicants were yet to serve their written submissions, Ex-parte Applicants were granted a further seven (7) days to file supplementary submissions and on the 5th December all parties confirmed compliance but the Ex-parte Applicants requested for time to settle with the 5th Respondent and the fixing of judgment date was deferred to the 5th March 2024.

7. On the 5th March 2024 Ex-parte Applicants further sought for more time to negotiate with the 5th Respondent and also to amend written submissions which the court declined reserving a judgment date for the 23rd April 2024.

8. The Ex-parte Applicants filed and relied on their written submissions dated 12th October 2023, while;

9. By the 1st Respondent’s Grounds of opposition dated 26th July 2022 Sonia Wanjeri, Litigation Counsel argues that;
a. That, the Application sought; as it is, does not meet the qualifications for the prayers

b. That, the Application is incurably defective and ought to be dismissed at the first instance;

c. That, the Applicant has failed to appreciate the roles of the 1st Respondent that, the 1st Respondent does not act suo motu but is just the tail end of a process.

d.  That, the Application as it is has been overtaken by events since the Respondent has already dispensed the task assigned as per the instructions and any orders issued will be in vain.

e. That, the Applicant did not meet the provisions of section Government proceedings act, which makes it a requirement to issue a notice of 13A of the intention to sue the government.

f. That, the application be struck out on the grounds that the suit is scandalous. frivolous and an abuse of the court process.

g. That, it is not in public interest that the orders sought in the application are granted thus the same should be dismissed with costs henceforth.
10. The 2nd Respondent filed a notice of preliminary objection dated 20th July 2022 contesting the jurisdiction of the court by dint of Article 88(4)(e) and that the Application is but an abuse of the process of court.

11. The 2nd and 3rd Respondents equally filed grounds of opposition dated 24th August 2022 that, the Application is a non-starter, bad in law, incompetent, overtaken by events as the General elections has occurred on 9th August 2022 and results declared and published in the gazette notice and that the main grievances of the Ex-parte Applicants is nonpayment of his dues for services rendered by the Nakuru County government and that the Motion is an abuse of the process of the Court.

12. That the 2nd and 3rd Respondents are improperly enjoined and the Application is frivolous, vexatious and designed to waste the courts time.

13. The 3rd Respondent equally filed a sworn Affidavit dated 20th July 2022 by C. Owiye Director, Legal and Corporate Affairs that distinguishes the Ex-parte Applicants claim of kshs 6,734,637/- which she states, they are strangers to and has no correlation to the General elections that the Application is a locus Classicus of abuse of the process of the court, and that under Article 88 of the constitution, the 3rd Respondent has a role in regulating the process in which parties nominate candidates to the elections, pre and post nomination disputes and that Article 88 and the General Elections Regulations as published in the gazette notice would be Applicable. That nomination period for candidates for governor was between 4th June 2022 and 7th June 2022 and if aggrieved the Ex-parte Applicants had a window of redress by lodging a complaint with the 3rd Respondent by the 9th June 2022 and that allegations of transgressions on the constitution ought to be channeled to the correct bodies.

14. The Application was opposed by the 4th Respondent in his filed Grounds of opposition dated 25th August 2023 which is on similar lines to the opposition by the 1st to the 3rd Respondents.
Ex-Parte Applicant’s Case
15. The Ex-parte Applicants filed and relied on their written submissions dated 12th October 2023 where is I would summarize the heavily laden fifteen-page submissions that the leave granted on the 6th July 2022 was to act as stay, and that the said stay was suo motu nullified on the 12th July 2022.

16. The Ex-parte Applicants fights with the Deputy Registrar to fix the motion for hearing on the 14th July 2022, complaints against the Judge, that 4th to the 6th Respondents have abused and misused public office by annually returning on average 4.28 Billion Shillings, that the 5th and 5th Respondents have disobeyed employment and labour relations court.
17. That having failed to obtain stay (stopping the publication of the names of the 4th and 5th Respondents as candidates to General the election) and with the alleged Nullification of the Stay Orders on the 12th July 2022 by Chemitei J deprived him any tinge of jurisdiction, the Ex-Parte Applicants engage in technical faulting of the notices of preliminary objections filed, attack and contestation of whether the county Attorney could Appear on behalf of the 4th Respondent (a private citizen) unfortunate allegations of collusion between the judge and the county attorney.

18. The Notices of Preliminary Objections are augmented by written submissions on similar line
1. The Ex-parte Applicant instituted Nakuru CMCC 146 of 2019 Paul Kimani –VS- Ministry of Home Affairs & 5 Others, claiming damages as a result of a Road Traffic Accident and judgement was delivered in his favour and a Decree/certificate of costs and Certificate of order against the Government was drawn certifying the amount payable to him.

2. The 1st Respondent, Defendant/judgement-debtor therein, failed to honor/settle the said judgement as a result of which the Ex-parte Applicant commenced these judicial review proceedings for orders of Mandamus against the Respondents and which were equally determined in his favor and an order of Mandamus consequently issued compelling/directing the Respondent(s) herein to pay him the judgement sum in the lower court plus costs and interest as more particularized in the order of Mandamus, Certificate of Taxed costs and a further order against Government annexed to the supporting affidavit to the application.

3. The same were duly served upon the Respondents herein and despite demand, they failed to Honor or comply with the same which necessitated filling of the current application.

4. As such and in the circumstances, the Ex-Parte Applicant prays that the application is merited since there is no other avenue/remedy available to the subject herein to ensure that his dues are paid and also to enable the court stamp its authority by, ensuring compliance with its orders. Ex-Parte Applicant relies on the case of Seventeenth Enterprises Limited Cabinet Secretary for Ministry of Interior and Coordination of National Government & 2 others [2016]:-
.... Execution as in ordinary proceedings is prohibited against the Government and its Officers acting in their official capacities. This immunity was emphasized by Visram and lbrahim, JJ (as they were) in Kisya Investments Ltd vs. Attorney General & Another (2005] 1 KLR 74, as follows:
"Order 28, rules 2(1) (a), (2) and (4) of the Civil Procedure Rules subject themselves to the provisions of the Government Proceedings Act which include provisions prohibiting execution against or attachment in respect of the Government... The order of mandamus is of a 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 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 or 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." This position is now underpinned in section 7(2)) of the Fair Administrative Action Act under which the Court is empowered to issue orders of judicial review where there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law. In those circumstances section 11(1) of the said Act empowers the Court to issue an order compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right. In the present case the ex-parte applicant has no other option of realizing the fruits of his judgement since he is bared from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that he has been awarded is realised. 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. 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/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 for 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 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 cast on him by Parliament. The fact that the Accounting Officer is not distinct from State of which he is a servant does not necessarily mean that he cannot owe duty to a subject as the Government which he serves. Whereas it is true  well as 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 cast 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 an 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, the employer of the concerned public officer and to uphold the dignity and authority of the court.

5. Reliance is placed by the Ex-Parte Applicant in the case of Republic v The Permanent Secretary Ministry of Transport and Infrastructure & another [2016] eKLR:- As observed above, the application before me is not opposed.
“This court (Wakiaga J), granted an order of mandamus on 3rd June 2013 directing the Respondents to pay to the ex parte the sum awarded in CMCC No 341 of 1998. The said order was served upon the Respondents' but they have not complied with the same, hence the present application. According to Black's Law Dictionary;
" Contempt is a disregard of, disobedience to, the rules, or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body."
In Halsbury's Laws of England, it is stated: -
"It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment…...... an application to court by him not being entertained until he had purged his contempt"
In book The Law of Contempt learned authors Nigel Lowe & Brenda Sufrin state as follows: -
"Coercive orders made by the courts should be obeyed and undertakings formally given to the courts should be honored unless and until they are set aside. Furthermore, it is generally no answer to an action for contempt that the order disobeyed or the undertaking broken should not have been made or accepted in the first place. The proper course if it is sought to challenge the order or undertaking is to apply to have it set aside.

6. In Econet Wireless Kenya Ltd Vs Minister for Information & Communication of Kenya & Another Ibrahim J (as he then was) stated as follows: -
"It is essential for the maintenance of the Rule of Law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against or in respect of whom, an order is made by Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void...In the present case the terms of the order are not in dispute. Knowledge or the order is not disputed. The alleged disobedience is not contested. l am satisfied that the applicant has demonstrated that there are sufficient grounds to warrant this court to allow the application. Accordingly, I hereby allow the application dated 30th March 2015 and order as follows:
- i. That Principal Secretary, Ministry of Transport and Infrastructure and the Principal Secretary Ministry of Land, Housing and Urban Development be and are hereby committed to civil to jail for a term not exceeding six (6) for disobeying this court's order issued on 3rd June 2013.
ii. That the said committal to civil jail may be dispensed with upon prompt payment to the ex parte applicant or his advocates on record of the full decretal sum awarded to Nyeri Civil Suit No. 341 of 1998. Orders accordingly.

7. Reliance is placed by the Ex-Parte Applicant in the case of Republic v Permanent Secretary Office of The President Ministry Of Internal Security & another Ex-Parte Nassir Mwandihi 2014] eKLR:-
“It is not in doubt that section 21(4) of the Government Proceedings Act prohibits execution against the Government. Section 21 (3) of the said Act on the other hand provides: "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. The effect of these provisions is that whereas execution proceedings as are known to law are not available against the Government, the accounting officer for the Government department concerned is nevertheless under a statutory duty to satisfy a judgement made by the Court against that department. In the present case the ex-parte applicant has no other option of realising 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 realised. 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. 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/her lawful rights which have been decreed by a Court of law 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 for 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 cast upon him by Parliament. The fact that the 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 recognised that when statutory duty is cast 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 an 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, the employer of the concerned public officer and to uphold the dignity and authority of the court.

8. On the other hand, Ex-parte Applicant urges court to note that, the Respondents did not file any affidavit in response to the averments in the application herein and which failure  he submits is fatal, since submissions no matter how good they are cannot substitute evidence as was held in the case of Henry Musemate Murwa v Francis Owino, Principal Secretary, Ministry of Public Service, Youth And Gender Affairs & another [2021] eKLR:- The Respondents did not file any affidavit to contest the averments in the application. The averments by Counsel for the Respondents that Dr. Francis O. Owino is not the Principal Secretary is not supported by any evidence. Submissions cannot take the place of evidence as was stated by the Court of Appeal in Daniel Toroitich Arap Moi Vs Mwangi Stephen Mureithi & Another (2014) eKLR.

9. The Ex-parte Applicant humbly submit that, the application herein is merited and should thus be allowed as uncontested. That the Respondents herein ought not to be heard to argue that, they cannot pay the subject herein his dues since there is no budgetary allocation for the same. This is because firstly, existence of a budgetary allocation is not a condition precedent to pay and secondly, it is the responsibility of the government to settle claims against it at all material times as was buttressed in the case of Seventeenth Enterprises Limited v Cabinet Secretary for Ministry of Interior and Coordination of National Government & 2 others [2016] where the court held that:-
This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues. The Respondent's claim that the Applicant should have waited until the start of the next financial year to enforce payment of the decree issued in his favour cannot be sustained firstly because it has no legal basis and secondly because it is the responsibility of the Government to make contingency provisions for its liabilities in tort in each financial year so that successful litigants who obtain decrees against the Government are not left without remedy at any time of the year.

10. The Ex-parte Applicant pray for costs of this application since costs follow event.


Analysis & Determination

11. Article 10 of the Constitution sets out the National Values and Principles of Governance that bind all state officers, state organs, public officers and all persons whenever they apply or interpret the Constitution, enact, apply or interpret any law, make or implement public policy decisions. The National Values and Principles of Governance include: the rule of law, equity, inclusiveness, equality, human rights, non-discrimination, good governance, transparency, accountability, democracy and participation of the people.

12. Under Article 47(1) of the Constitution, 'every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair." The essence of the right to fair administrative action is to ensure administrative. processes meet constitutional standards, the element that administrative act must be "lawful encapsulates the principle of legality and the fact the administrative action must be located in the law and must not be arbitrary.

13. In James Opiyo Wandayi v Kenya National Assembly &2 others [2016) eKLR this Court, Odunga J., opined as follows:
In my view Article 47 of the Constitution is now emphatic on the fairness of administrative action. The purpose of judicial review is to check that public bodies do not exceed their jurisdiction and carry out their duties in a manner that is detrimental to the public at large.it is meant to uplift the quality of public decision making, and thereby ensure for the citizen civilized governance, by holding the public authority to the limit defined by the law. Judicial review is therefore an important control, ventilating a host of varied types of problems, the focus of cases may range from matters of grave public concern to those of acute personal interest; from general policy to individualized discretion; from social controversy to commercial self- policy to interest; and anything in between, As a result, judicial review has significantly improved the quality of decision making. it has done this by upholding the values of fairness, reasonableness and objectivity in the conduct of management of public affairs. It has also restrained or curbed arbitrariness, checked abuse of power and has generally enhanced the rule of law in government business and other public entities. Seen from the above standpoint it is a sufficient tool in causing the body in question to remain accountable.
14. I wish to point out that, Judicial Review are special Powers by this court to examine the Administrative actions of the judicial, legislative, and executive arms of the government and to determine whether such Administrative actions are consistent with the constitution. Actions judged inconsistent are declared unconstitutional and, therefore, null and void. There has to be strict compliance with Order 53 where the relief sought is in the Nature of Mandamus, Prohobition and Certiorari.

15. The Supreme Court has had the occasion to consider the scope of judicial review jurisdiction in conducting merit review in an Order 53 Motion and the nature of the doctrine of mootness, in the case of Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment) holding that;

“However, if an aggrieved party approaches the court under Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken………
……………The doctrine of mootness required that controversy must exist throughout judicial proceedings including at the appellate level. An appeal or an issue was moot when a decision would not have the effect of resolving a live controversy affecting or potentially affecting the rights of parties. Such a live controversy must be present not only when the action or proceeding was commenced but also when the court was called upon to reach a decision. The doctrine of mootness was therefore based on the notion that judicial resources ought to be utilized efficiently and should not be dedicated to an abstract proposition of law and that courts should avoid deciding on matters that were abstract, academic, or hypothetical.
There existed no live controversy on the question of restraining the Inspector General, DCI and DPP from arresting and charging the appellants as the adverse decision to prosecute the appellants had already taken place and on the existing facts, there was no imminent threat to arrest or charge the appellant again.”

19. The Opposition here is on purely matter of law that the motion as filed even with its amendment contravene a plethora of provisions and thus ought to be dismissed.

20. The 2022 General Elections occurred and can never recur, the Ex-Parte Applicants had the liberty to pursue the 4th and the 5th Respondents by filing election petitions contesting the legality of their candidature or outcome of the electoral process.

21. This Court takes a dim view of Orders in the nature on Mandamus being sought against private individuals in a “willy nilly” fashion where the public obligation and duty on the part of the private individual is not demonstrated or is manifestly lacking under the circumstances.

22. The Orders of Prohibition sought by the Ex-parte Applicants against the 3rd and 2nd Respondents of publishing of the 4th and 5th Respondents names from the general election ballot papers is now equally a moot issue and that there is no live dispute to warrant a judicial review remedy.

23. Judicial review relief is an equitable remedy with a threshold test for mandamus is set out in celebrated supreme court of Canada case of Apotex Ins Vs Canada (Attorney General), [1994] 3 SCR 1100 and was also discussed in Dragan Vs Canadan (Ministry of Citizenship and Immigration) (2003), 227 F.T.R. 272 (TD). The eight factors that must present for the writ to issue are -;
i. There must be a public legal duty to act.
ii. The duty must be owed to the applicants;
iii. There must be a clear right to the performance of that duty meaning that;
a) The applicants have satisfied all conditions precedent, and
b) There must have been-;
1. A prior demand for performance.
2. A reasonable time to comply with the demand, unless there was outright refusal and
3. An express refusal or an implied refusal through unreasonable delay
4. No other adequate remedy is available to the applicants
5. The orders sought must be of some practical value or effect
6. There is no equitable bar to the relief sought
7. On a balance of convenience, mandamus should lie”

24. In the case of District Commissioner, Kiambu Vs R and others, ex-parte Ethan Njau (1960) EA 109, the court of appeal for Eastern Africa held inter alia that-:
“… a distinct demand for action and its refusal is, as a general rule, a prerequisite for the grant of an order of mandamus, in the present case it was doubtful if there had been a clear demand for the relief sought…”

25. The grant of orders of mandamus is discretionary and the court is entitled to take into account the nature of the process against which Judicial review is sought and satisfy itself that there is reasonable basis to justify or decline the orders sought.

26. In the present case just as in the case referred to hereinabove, there is no evidence that a distinct demand for action was made by the Ex-Parte Applicant which was refused and that No effort was made at invoking the Procedures provided for under Article 88 of the constitution. In the absence of any evidence, it is doubtful if there had been a clear demand for the relief sought that was directed to the 1st 2nd and 3rd Respondent and which They refused to act.

27. The underlying substratum herein is the claim of Kshs 6,734,367 owed to the 1st Ex-Parte Applicant since 2012 by county government of Nakuru which pending bill has no correlation to the 2022 General Elections Therefore, I am unable to find any grounds to grant the orders sought.

28.  I am convincingly persuaded to uphold and find in favor for the 1st, 4th and 5th Respondents Grounds of Opposition dated 25th August 2022, 6th October 2022 and 2nd November 2023. This court observes that the Orders of Mandamus sought was linked to the publication of the 4th and 5th Respondents names as candidates in the 2022 General Elections.

29. I am further persuaded that notwithstanding the fact that, the Ex-Parte Applicants are Pro-Se Litigants with limited legal knowledge, the spirited fight to steal a match Ex-parte and obtain a stay stopping the 4th and 5th Respondents from participating in the General Election is the glaring manifestation of malafide and abuse and that upon the court clarifying that no stay was granted then the Ex-Parte Applicants lost the incentive. I am convinced that this case is a case that ought not to have gone past the leave stage and that, the intensity and protracted nature would justify the award of costs as the Ex-parte Applicants equally sought for costs. The Ex-Parte Applicants had the liberty to withdraw the motion once it became moot.

The Disposition
30. In the premises, I find that the ex parte Applicant’s Notice of Motion dated 22nd July 2022 is without any merit. I accordingly Dismiss the same.
31. I am inclined to grant the costs to the Respondents
It is So Ordered

Quorum;
• Mr. Edward Kings Onyancha Ex-Parte Applicant- Absent
• Mr. Joseph Matu Nganga Ex-Parte Applicant- Absent
• Wanjeri Advocate for the 1st Respondent
• Mr. Thuku Advocate Holding Brief for
Mwangi for 2nd and 3rd Respondents
• Mwangi Advocate Holding Brief for
Kahiga Advocate for the 4th and 5th Respondents