Judgment
1. A Judgment was rendered in Constitutional and Human Rights Petition No. 400 of 2014 in favor of the Applicant against the 1st Respondent for the sum of Kshs. 5,000,000 together with costs and interest at court rates on 24th November, 2017,
2. The interest was subsequently assessed at Kshs. 126,575.30.A Certificate Order was then issued against the 1st Respondent on 31stFebruary, 2018.
3. The decree remains unpaid as a result of which The Ex-Parte Applicant filed the application dated 15 December 2023 seeking a grant of the order of mandamus by way of Judicial Review to compel the Respondents to comply with the Certificate of Order dated 24 th November 2017.
4. The Respondents oppose the application through a Replying Affidavit dated 31 January 2024 and a Supplementary Affidavit dated 20 March 2024.
The applicant’s case:
5. It is the applicant’s submissions that he has fully satisfied the test for purposes of granting the orders sought as set out in the case of Apotex Inc. vs. Canada (Attorney General) also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration). The eight factors that must be 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:
I. A prior demand for performance;
II. A reasonable time to comply with the demand, unless there was outright refusal; and
III. An express refusal, or an implied refusal through unreasonable delay;
(iv) No other adequate remedy is available to the Applicants;
(v) The Order sought must be of some practical value or effect;
(vi) There is no equitable bar to the relief sought;
(vii) On a balance of convenience, mandamus should lie.
6. Reliance is also placed in the case of In Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza [2012] Eklr, Githua J stated as follows:
“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 regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees 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 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. 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. 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.”
7. The applicant believes that the allegation by the Respondent in their Replying Affidavit that the application is time barred has no basis and that The Respondents have not demonstrated that the substantive application is one of those ‘specified proceedings’ contemplated in section 9(2) of the Law Reform Act which rules prescribe that may be made within six months of the act or omission complained of.
8. In the case of Republic v County Government of Nairobi Ex Parte Macharia Njeru & another [2021] eKLR the court in allowing an application seeking orders for mandamus, it found that-
“I would agree with the applicants that it has not been demonstrated that their application is one of those ‘specified proceedings’ contemplated in section 9(2) of the Law Reform Act which rules prescribe that may be made within six months of the act or omission complained of. According to Order 53 of the Civil Procedure Rules which, no doubt, are the rules envisaged in section 9(2) of the Law Reform Act it is only the prerogative order of certiorari that is subject to limitation period.”
9. On the above alone, the Respondents’ grounds must fail.
10. It is his case that Section 4(4) of the Limitations of Actions Act is not couched in mandatory terms as the word “MAY” is used.The Applicant prays that the court does exercise its discretion and award interest as was assessed in the certificate of Order.
Respondents case;
11. In opposing the Application, Respondents submit that there is no refusal nor neglect on their part to satisfy and settle the decretal sums in question.
12. The 2nd Respondent, who is the Accounting Officer for the Ministry of Defence argues that he does not have control over the Ministry's budgetary allocations and that Parliament has not provided the Ministry of Defence with sufficient or specific funds to settle the instant claim.
13. Reliance is placed on Article 206(2) of the Constitution, which provides that money may be withdrawn from the Consolidated Fund only in accordance with an appropriation by an Act of Parliament or as a charge authorized by the Constitution itself or an Act of Parliament.
14. Judgements are deemed by Parliament as an expenditure which must be justified in law and against funds specifically earmarked for that particular purpose.
15. In the absence of dedicated funds, the 2nd Respondent is unable to unilaterally make a decision to settle a judgment debt as the same is an elaborate process involving the National treasury, Parliament and the Ministry of Defence.
16. The Respondents urge that without an expenditure being sanctioned by Parliament, public money cannot be appropriated.
17. On another front, the Respondents submit that the suit is time barred given that The judgment thereof was issued on 24 November 2017.The Certificate of Order against Government, which the Ex- parte Applicant intends to enforce by an order of Mandamus, was made on 31 January 2018.The Ex-parte Applicant filed this instant application on 15 December 2023
18. Section 9(1) and (2) of the Law Reform Act stipulates that an application for mandamus, prohibition and certiorari shall be made within six months from the date the cause of action arose.The cause of action herein arose over six (6) years ago.
19. In the case of Laban Macharia vs. Commissioner of Insurance & Another [2005] eKLR, the Honourable Court dismissed an application for judicial review orders of mandamus that had been brought outside the six months' period stipulated under Section 9(2) of the Law Reform Act. In this case, the High Court observed that leave ought not to have been granted to bring an application in the nature of Mandamus.
20. The explanation, in the Respondents' view, that The delay was occasioned by its choice to institute alternative causes of action in court, which were dismissed is insufficient and untenable. The fact that the option to institute judicial review proceedings has always been at the disposal of the Ex parte Applicant, who opted to take a different route.
21. The leave to institute judicial review proceedings does not bar the Respondents, however, from raising the statutory time limitation during the inter-partes hearing.
22. The Respondents rely on the case of Laban Mach aria (supra), where the court found that leave to apply for the order of Mandamus, having been instituted beyond the six (6) months period, the consequent progeny Notice of Motion Application was equally incompetent. Consequently, the entire application was striked out the with costs.
23. The Respondents submit that Judicial Review comprises specified proceedings within the meaning of section 9(2) of the Law Reform Act, which in matters Judicial review is the applicable primary statute even where reference is made to Order 53 of the Civil Procedure Rules, such as the Applicant's substantive Notice of Motion Application.
24. Reliance is made on the case of Republic v Public Procurement Administrative Review Board Ex-parte Syner- Chemie Limited [2016] eKLR.
25. In the case of Jotham Mulati Welamondi vs. The Electoral Commission of Kenya Bungoma H.C. Misc. Appl. No. 81 of 2002 [2002] 1 KLR 486, the Court held that Judicial review is a special procedure and as the Court is exercising neither a civil or criminal jurisdiction in the strict sense of the word, the invocation of the provisions of the Civil Procedure Act render an application wholly incompetent.
26. It is the Respondents' submissions that the prayer by the Ex-Parte Applicant that interest on KShs.5,000,000.00 at the rate of 14% per annum from 24 November 2017 until payment in full is bereft of any legal sanction and should fail accordingly.
27. This is so owing to section 4(4) of the Limitation of Actions Act, Cap 22 Laws of Kenya, which states that no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.
28. The Respondents submit that the law of limitation was founded upon maxims such as interest interest reipublicae ut sit finis litium, which meant that litigation had to come to an end in the interest of society as a whole, and vigilantibus non dormientibus jura subveniunt, which meant that the law assisted those that were vigilant with their rights. As such, the Ex-parte Applicant ought not to recover interest six (6) years from the date the interest became due. Since Judgement was entered on 24 November 2017, six (6) years from that date would be 23 November 2023 and so he can only recover interest up to that date.
29. Reliance is placed in the case of Rachael Mwikali Mwandia v Ken Maweu Kasinga [2013] eKLR and Nicona Construction Co. Ltd vs Ken South Plastics Limited & Another [2021] eKLR.
30. In the case of Laban Macharia (Supra) and Rachael Mwikali Mwandia (Supra), the Court found that it is trite law that equity aids the vigilant hence the Ex-Parte Applicant ought to have known better that time was of the essence. In the circumstances, the action to recover the interest beyond six years is time barred.
31. The Respondents submit that although judicial review is rooted in the Constitution, one of the requirements to be satisfied before the order can be issued is that there is no equitable bar to the relief: Apotex Inc —v- Canada (Attorney General) Apotex Inc. —v- Canada (Attorney General) [1994] 3 SCR 1100.
32. In the case of Republic of Kenya v County Government of Kitui Ex parte Power Pump Technical Co. Ltd [2019] eKLR, the Court held that a claim for an equitable remedy is subject to special defences.
33. In Republic of Phillipines vs. Court of Appeals, G.R. No. 116111 cited in the case of Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others [2018] eKLR the court observed that laches refer to "the failure or neglect, for an unreasonable length of time, to do that which by exercising due diligence could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it."
34. The respondents argue that in the instant case, the Ex-Parte Applicant failed to institute the proceedings for Judicial Review in time.
35. They argue that undue hardship is likely to be visited upon the 2ndRespondent, who has no control over the Ministry's budgetary allocations and without the necessary constitutional appropriation to defray the sums owed to the Ex-parte Applicant.
ANALYSIS AND DETERMINATION:
Upon considering the arguments advanced by the parties herein, I find the issue for determination is whether the Applicant has made out a case for the grant of the orders sought.
36. In the case of Republic v Kenya National Examinations Council ex parte Gathenji & 8 Others Civil Appeal No 234 of 1996, where the Court of Appeal cited with approval, Halsbury’s Law of England, 4th Edn. Vol. 7 p. 111 para 89 thus:
(i) "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 particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."...These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”
In Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR while dealing with the said provisions expressed herself as follows:
(ii) “…Unlike in other civil proceedings, where decrees 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 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. 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. 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.”
(iii) 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 judgment made by the Court against that department.
In Republic v The Attorney General & Another ex parte James Alfred Koroso (2013) eKLR, cited with approval the case of Shah v Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543 where Goudie, Jexpressed himself, inter alia, as follows:
(iv) “Mandamus is essentially English in its origin and development and it is therefore logical that the court should look for an English definition. Mandamus is a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent. Thus, it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual. Mandamus is neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do or not to do something; the duty itself being of an imperative nature… In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fulfilment of which some other person has an interest the court has jurisdiction to grant mandamus to compel the fulfilment…The foregoing may also be thought to be much in point in relation to the applicant’s unsatisfied judgement which has been rendered valueless by the refusal of the Treasury Officer of Accounts to perform his statutory duty under section 20(3) of the Government Proceedings Act. It is perhaps hardly necessary to add that the applicant has very much of an interest in the fulfilment of that duty…Since mandamus originated and was developed under English law it seems reasonable to assume that when the legislature in Uganda applied it to Uganda they intended it to be governed by English law in so far as this was not inconsistent with Uganda law. Uganda, being a sovereign State, the Court is not bound by English law but the court considers the English decisions must be of strong persuasive weight and afford guidance in matters not covered by Uganda law…English authorities are overwhelmingly to the effect that no order can be made against the State as such or against a servant of the State when he is acting “simply in his capacity of servant”. There are no doubt cases where servants of the Crown have been constituted by Statute agents to do particular acts, and in these cases a mandamus would lie against them as individuals designated to do those acts. Therefore, where government officials have been constituted agents for carrying out particular duties in relation to subjects, whether by royal charter, statute, or common law, so that they are under a legal obligation towards those subjects, an order of mandamus will lie for the enforcement of the duties…With regard to the question whether mandamus will lie, that case falls within the class of cases when officials have a public duty to perform, and having refused to perform it, mandamus will lie on the application of a person interested to compel them to do so. It is no doubt difficult to draw the line, and some of the cases are not easy to reconcile… It seems to be an illogical argument that the Government Accounting Officer cannot be compelled to carry out a statutory duty specifically imposed by Parliament out of funds which Parliament itself has said in section 29(1) of the Government Proceedings Act shall be provided for the purpose. There is nothing in the said Act itself to suggest that this duty is owed solely to the Government….Whereas mandamus may be refused where there is another appropriate remedy, there is no discretion to withhold mandamus if no other remedy remains. When there is no specific remedy, the court will grant a mandamus that justice may be done. The construction of that sentence is this: where there is no specific remedy and by reason of the want of specific remedy justice cannot be done unless a mandamus is to go, then mandamus will go… In the present case it is conceded that if mandamus was refused, there was no other legal remedy open to the applicant. It was also admitted that there were no alternative instructions as to the manner in which, if at all, the Government proposed to satisfy the applicant’s decree. It is sufficient for the duty to be owed to the public at large. The prosecutor of the writ of mandamus must be clothed with a clear legal right to something which is properly the subject of the writ, or a legal right by virtue of an Act of Parliament… In the court’s view the granting of mandamus against the Government would not be to give any relief against the Government which could not have been obtained in proceedings against the Government contrary to section 15(2) of the Government Proceedings Act. What the applicant is seeking is not relief against the Government but to compel a Government official to do what the Government, through Parliament, has directed him to do. Likewise, there is nothing in section 20(4) of the Act to prevent the making of such order. The subsection commences with the proviso “save as is provided in this section”. The relief sought arises out of subsection (3), and 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 Treasury Officer of Accounts 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 Crown servant in his official capacity and the duty is owed not to the Crown 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. Where a duty has been directly imposed by Statute for the benefit of the subject upon a Crown servant as persona designata, and the duty is to be wholly discharged by him in his official capacity, as distinct from his capacity as an adviser to or an instrument of the Crown, the Courts have shown readiness to grant applications for mandamus by persons who have a direct and substantial interest in securing the performance of the duty. It would be going too far to say that whenever a statutory duty is directly cast upon a Crown servant that duty is potentially enforceable by mandamus on the application of a member of the public for the context may indicate that the servant is to act purely as an adviser to or agent of the Crown, but the situations in which mandamus will not lie for this reason alone are comparatively few…Mandamus does not lie against a public officer as a matter of course. The courts are reluctant to direct a writ of mandamus against executive officers of a government unless some specific act or thing which the law requires to be done has been omitted. Courts should proceed with extreme caution for the granting of the writ which would result in the interference by the judicial department with the management of the executive department of the government. The Courts will not intervene to compel an action by an executive officer unless his duty to act is clearly established and plainly defined and the obligation to act is peremptory…On any reasonable interpretation of the duty of the Treasury Officer of Accounts under section 20(3) of the Act it cannot be argued that his duty is merely advisory, he is detailed as persona designate to act for the benefit of the subject rather than a mere agent of Government, his duty is clearly established and plainly defined, and the obligation to act is peremptory. It may be that they are answerable to the Crown but they are answerable to the subject…The court should take into account a wide variety of circumstances, including the exigency which calls for the exercise of its discretion, the consequences of granting it, and the nature and extent of the wrong or injury which could follow a refusal and it may be granted or refused depending on whether or not it promotes substantial justice… The issue of discretion depends largely on whether or not one should, or indeed can, look behind the judgement giving rise to the applicant’s decree. Therefore, an order of mandamus will issue as prayed with costs.” [Emphasis added].
(v) In the instant case, the Applicant herein has moved this Court to compel the satisfaction of a judgment already decreed in his favour by a competent court.
(vi) The Respondents argue that they have not paid the Applicant because they have no resources as the reason why they have not paid. The Respondents have not given a satisfactory reason why the decree has not been fulfilled years down the line.
In the case of Wachira Nderitu, Ngugi & Co. Advocates vs. The Town Clerk, City Council of Nairobi Miscellaneous Application No. 354 of 2012 the Court pronounced itself as follows:
(vii) “I have however considered the other issues raised by the respondent with respect to its debt portfolio as against its financial resources. It is neither in the interest of this Court nor that of the ex parte applicant that the respondent should be brought to its knees. The Court appreciates and it is a matter of judicial notice that most of the local authorities are reeling under the weight of the debts accrued by their predecessors and that they are trying to find their footing in the current governmental set up. Accordingly, I am satisfied based on the material on record that the respondent ought to be given some breathing space to arrange its finances and settle the sum due herein.”
(viii) In my view a party facing financial constraints is at liberty to move the Court for appropriate orders which would enable it to settle its obligations while staying afloat. That however, is not a reason for one to evade its responsibility to settle such obligations. In other words, financial difficulty is only a consideration when it comes to determining the mode of settlement of a decree but is not a basis for declining to compel the Respondent to settle a sum decreed by the Court to be due from it. That objection therefore fails.”
(ix) Non-allocation of funds by Parliament is not an acceptable defence or justifiable excuse for non-payment of decretal sums ordered to be paid by Government officials, in the absence of any evidence of any attempts made by the responsible Government official to commence the process of such allocation. In the present case, this is particularly relevant given that the present contempt of Court proceedings commenced in April 2017, and the Respondent did not indicate what steps if any, have been taken since then to effect payment of the monies due to the Applicant.”
(x) The Applicant has complied with the requisite procedure under Section 21 of the Government Proceedings Act. Therefore, if the Court were to decline to grant mandamus, the Applicants would be left without an effective remedy despite holding a decree.
The argument around limitation of action Act.
37. I'm guided by Justice Ngaah decisions in the cases of:
a. Republic v Principal Secretary, Ministry of Agriculture Livestock & Fisheries (State Department of Crops Developments & another; Baragu (Ex parte) (Application 511 of 2015) [2023] KEHC 23187 (KLR) (Judicial Review) the court held that…the respondents’ submissions that the demand for interest is contrary to section 4 (4) of the Limitations of Actions Act which states as follows:
b. An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.
c. The court in the case of Assia Pharmaceuticals Ltd v Kenya Alliance Insurance Co. Ltd (Civil Case 1605 of 1999) [2021] KEHC 19 (KLR) (Commercial and Tax) (21 July 2021) (Ruling) held as follows;
d. It is important to mention that the word “action” in section 4(4) of the Limitation of Actions Act has been judicially construed to include execution proceedings. This position was appreciated by the Court of Appeal in Njuguna v Njau,Malakwen Arap Maswai v Paul Koskei and M’ikiara M’rinkanya & another v Gilbert Kabeere M’mbijiwe. In these three decisions, the Court of Appeal construed the word “action” in section 4 (4) of the Act as including all kinds of civil proceedings including execution proceedings.”
e. The learned judge proceeded to further find that an existing decree as expressed in the certificate of order against the government issued on February 8, 2012.The order of mandamus could not have varied the decree or its terms and, at any rate, it cannot be interpreted to have contravened the provisions of section 4(4) of the Limitation of Actions Act.”
f. Judicial review proceedings against the Respondents cannot be instituted on the basis of a Decree. The Applicant has to extract a Certificate of Order first.
38. The Certificate of Order against Government, which the Ex- parte Applicant intends to enforce by an order of Mandamus, was made on 31 January 2018.The suit was instituted in time and I so hold.
39. The argument that the respondents will suffer undue hardship has not been proven.
Disposition;
40. The applicant has made out a case that warrants the grant of the orders sought.
Order;
1. An order of Mandamus is hereby issued compelling the Respondents herein to satisfy the Judgment, Decree, Certificate of Costs and Order against the Government all in total principal sum of Ksh. 5,000,000 together with interest thereon at 14% per annum from 24th November, 2017 plus further costs of this Judicial Review proceedings until payment in full, six months from today.
2. Cost to the Applicant.