REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E035 OF 2023
JANE NYAGUTHII WANG'ENDO……………………… 1stAPPLICANT
WINNIE NYAKIO WANG'ENDO (Suing through her
appointed Attorney JANE NYAGUTHII WANG'ENDO) …. 2ND APPLICANT
-VERSUS-
THE COUNTY GOVERNMENT OF NAIROBI ……… RESPONDENT
JUDGMENT
1. The applicant through the application dated 19th October 2023 seeks orders that;
An Order of Mandamus do issue compelling the Respondent to pay the Ex Parte Applicants the sum of K.Shs. 8,049,375.00, with interest at court rates, on account of Judgment dated 17th May 2019 and delivered against the Respondent on 23rd May 2019 in Nairobi Environment and Land Court Case Number 16 of 2003: Jane Nyaguthii Wanqiendo and Another v Nairobi City Council and 4 Others, together with costs taxed at K.Shs. 784,702.47.
The Applicant’s submissions:
2. The Applicants were the Plaintiffs in Nairobi Environment and Land Court Case Number 16 of 2003: Jane Nyaguthii Wanngendo and Another v Nairobi City Council and 4 Others.
3. On 23rd May 2019, Judgment dated 17th May 2019 was entered in favour of the applicants for exemplary damages amounting to the sim of Kshs.5 Million, special damages of Kshs. 3,049,375/- plus interest at court rates plus costs.
4. The applicant extracted and obtained a Decree dated 1st July 2021 lodged a Bill of Costs that culminated in the Ruling of 16th June 2022, for the sum of Kshs. 784, 702.47. A Certificate of Taxation dated 8th July 2022 was thereafter extracted. A notice was thereafter issued to the Respondent pursuant to Section 21 (2) of the Government Proceedings Act. The entire decretal sum and taxed costs remains outstanding.
The Applicants’ case:
5. The applicants rely on the case of Republic v County Secretary, Nairobi City County & another; Tom Oiienda & Associates (Exparte) (Judicial Review E1096 of 2020) 120231KEHC 23737 (KLR) (Judicial Review) (13 October 20231 (Judgment),where the court addressed itself on the true purpose of the provisions of Section 21 of the Government Proceedings Act as follows:
6. "19. The procedure in section 21 of the Government Proceedings Act is not meant to relieve the Respondents from meeting their legal and statutory obligation to satisfy decrees and orders of the Court, and its main purpose is to notify the Respondents of the debt is due to and for them to facilitate payment of the same."
7. They urge the court to note that the Respondent is not on record disputing the validity of the said Judgment issued in Nairobi ELCC Number 16 of 2003 and / or the resultant Decree and Certificate of Costs.
8. To date, the Respondent has not challenged the Judgment, Decree and / or Costs awarded in favour of the Applicants in Nairobi ELCC Number 16 of 2003, yet the Judgment remains unsatisfied close to 5 years later despite follow up for settlement of the same.
9. They submit that the Respondent cannot be heard to argue against the grant of the mandamus especially given that the Applicants have demonstrated substantive compliance with the provisions of Section 21 of the Government Proceedings Act through the letter dated 2nd February 2023 and in so far as adequate notice of the debt due was issued to the Respondent.
10. In any event, the savings provisions of the Government Proceedings Act at Section 34 (3) are unequivocal in so far as they provide as follows:
11. "This Act shall not operate to limit the discretion of the court to grant relief by way of mandamus in cases in which that relief might have been granted before the commencement of this Act, notwithstanding that by reason of the provisions of this Act some other and further remedy is available."
12. They also rely on the provisions of Article159 (2) (d) of the Constitution which eschew the sacrifice of substantive justice at the altar of procedural technicalities.
13. Reliance is placed in the case of Republic V Town Clerk of Webuye County Council & Another 2014 eKLR where the Learned Judge stated as follows:
14. "16. ... A decree holder's right to enjoy fruits of his judgment must not be thwarted. When faced with such a scenario, the Court should adopt an interpretation that favours enforcement and as far as possible secures accrued rights. My reasoning is underpinned by the values of the Constitution particularised under Article 10, the obligation of the court to do justice to the parties and to do so without delay under Article 159(2) (a) and (b) and the applicant's right of access to justice protected under Article 48 of the Constitution.
The Respondent’s case:
15. The Respondent raised grounds of opposition, that:
A. The Application herein and the entire proceedings instituted by the Ex Parte Applicants are a non-starter, misconceived, and fatally defective for failure to comply with the mandatory provisions of Section 21(1) and (2) of the Government Proceedings Act,
B. The Application herein and the entire proceedings are otherwise an abuse of Court process as the Applicants seek an order of Mandamus compelling the Respondent to pay a decretal sum, yet the Applicants have failed to satisfy the conditions precedent under the Government Proceedings Act, Cap 40 for settlement of that decretal sum and costs.
C. The ExParte Applicants ought not to have been granted leave to institute the proceedings herein as they had not satisfied the conditions precedent under the Government Proceedings Act, Cap 40 for settlement of that decretal sum.
16. The respondent also raised a Preliminary Objection on the grounds that:
A. The Application herein and the entire proceedings are misconceived, and fatally defective for failure of the Applicants to comply with the mandatory provisions of Section 21(1) and (2) of the Government Proceedings Act, Cap 40 Laws of Kenya.
B. The Application as filed is premature and an abuse of the Court process, and thus should be struck off.
Respondents’ submissions:
17. A Preliminary Objection was defined by Law, JA and Sir Charles Newbold P. in Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors [1969] EA 696. The aforesaid case was referred to with approval by the Court of Appeal in Suleiman Said Shabhal v Independent Electoral and Boundaries Commission & 3 Others [2014] eKLR. At page 700, Law, JA stated that:
" ...a 'preliminary objection' consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration."
18. The basis for seeking the grant of an order of mandamus flows from the judgment that was rendered in Nairobi Environment and Land court case Number 16 of 2003: Jane Nyaguthii Wang 'endo and another v Nairobi City Council and 4 others; together with taxed costs and interests.
19. Reliance is also placed in the case of Republic vs Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex-Parte Fredrick Manoah Egunza 120121 eKLR stated thus with regards to monetary decrees issued against the Government.
... 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."[Emphasis Added]
20. Execution against Government is not undertaken as in the ordinary civil cases for it has to comply with the provisions of Section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules. To that end, Section 21 (1) and (2) of the Government Proceedings Act, Cap 40 provides as follows:
"Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:
Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (f any) ordered to be paid to the applicant.
(2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General".
21. Section 21(5) of the Government Proceedings Act provides that the section applies to County Governments too:
"This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party."
22. Order 29, rule 3 of the Civil Procedure Rules, 2010 provides that the certificate referred to in Section 21 (1) of the Government Proceedings Act is either a Certificate of Order Against the Government or a Certificate of Order for Costs Against the Government with variations as the circumstances may require.
23. Order 29 Rule 3 of the Civil Procedure Rules provides thus: -
"Any application for a certificate under section 21 of the Government Proceedings Act (Cap. 40) (which relates to satisfaction of orders against the Government) shall be
made to a registrar or, in the case of a subordinate court, to the court; and any application under that section for a direction that a separate certificate be issued with respect to costs ordered to be paid to the applicant shall be made to the court and may be made ex parte without a summons, and such certificate shall be in one of Form Nos. 22 and 23 of Appendix A with such variations as circumstances may require."
24. Section 21 (1) and (2) of the Government Proceedings Act, as read with Order 29, rule 3 of the Civil Procedure Rules (quoted hereinabove) provide for the procurement from the Court, a Certificate of Order Against the Government or a Certificate of Order for Costs Against the Government by the successful litigant— and which certificate is in Form Nos. 22 and 23 of Appendix A of the Civil Procedure Rules, as a condition precedent when seeking to execute against Government.
25. The Applicant in whose favour the order (judgement) is made is required by law to apply for the certificate after the expiry of twenty-one (21) days from the date of the order and if there is an order for costs an application for the said certificate may be applied for after the costs have been taxed.
26. Order 29 Rule 3 uses the word "shall" in referring to the forms Nos 22 and 23 of Appendix A.
27. The Applicant ought to have made an Application to the Registrar for issuance of the Certificate of Order Against Government or a Certificate of Order for Costs Against the Government. The Applicants have neither made the said application nor procured the said certificates.
28. In the case of Republic v Principal Magistrate's Court at Mavoko & another Ex-Parte Joseph Ole Lenku Governor Kajiado County & another 12018] eKLR in explaining this statutory requirement stated thus: -
"... a party wishing to realize the fruits of a judgement against the government must first start by getting issued with a certificate of costs and certificate of order against the Government." [Emphasis Added]
29. The essence of the aforesaid procedure as observed in Permanent Secretary Office of The President, Ministry of Internal Security & Another Ex-parte Nassir Mwandihi [2014] eKLR, is to give adequate notice to the Government to make arrangements to satisfy the decree.
30. The Court further in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex-Parte Fredrick Manoah Egunza (supra) stated that once the Certificate of Order against the Government is served on the Hon. Attorney General, Section 21 (3) of the Government Proceedings Act then 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.
31. The Applicants, have, through their Application before this Honorable Court submitted a letter dated 2nd February 2023 (Exhibit JNW 6) and purported the same to be the Notice contemplated under Section 21 of the Government Proceedings Act, Cap 40 of the Laws of Kenya.
32. The said letter, is neither the notice contemplated under Section 21 of the Government Proceedings Act, nor is it in forms 2 or 23 provided for under Order 29 (3) of the Civil Procedure Rules.
Analysis and determination;
33. A Preliminary Objection was defined by Law, JA and Sir Charles Newbold P. in Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors [1969] EA 696. The aforesaid case was referred to with approval by the Court of Appeal in Suleiman Said Shabhal v Independent Electoral and Boundaries Commission & 3 Others [2014] eKLR. At page 700, Law, JA stated that:
" ...a 'preliminary objection' consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration."
34. The applicant extracted and obtained the Decree dated 1st July 2021.The Applicant thereafter lodged a Bill of Costs that culminated in the Ruling of 16th June 2022, for the Sum of K.Shs. 784,702.47.A Certificate of Taxation dated 8th July 2022 was thereafter extracted. A notice was thereafter issued to the Respondent pursuant to Section 21 (2) of the Government Proceedings Act.
35. In Musa Tapem v Principal Secretary Ministry of Interior & Co-ordination of National Government &
another [2021] eKLR; where the court dismissed an application such as the one before this court
for failure to comply with the mandatory provisions of the law. The Court held as follows: -"I find that the ex parte applicant has not complied with the provisions of section 21 and Order 29 Rule 3 of the Civil Procedure Rules, which require the issuance and service of the certificate of costs and the order in respect of the judgement sought to be enforcement. Counsel for the ex parte applicant has not even addressed the issuance and service of the certificate of costs and the order sought to be enforced in his written submissions...I find that counsel's submissions appear to be attractive, but they miss the point that the provisions of section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules, have not been complied with as required of the ex parte applicant.
36. In this regard, I further find that the elaborate procedural requirements of the foregoing statutory provisions are intended and do promote transparency in the management of public finance, which is a constitutional requirement as set out in article 201 of the 2010 Constitution... "
37. Republic V Town Clerk of Webuye County Council & Another j20141 eKLR where the Learned Judge stated as follows:
"16. ... A decree holder's right to enjoy fruits of his judgment must not be thwarted. When faced with such a scenario, the Court should adopt an interpretation that favours enforcement and as far as possible secures accrued rights. My reasoning is underpinned by the values of the Constitution particularised under Article 10, the obligation of the court to do justice to the parties and to do so without delay under Article 159(2) (a) and (b) and the applicant's right of access to justice protected under Article 48 of the Constitution.
38. It is this court’s finding that the issue is more than a mere technicality that can be remedies under Article 159 of the Constitution.
Disposition;
39. The Ex parte Applicant did not comply with the provisions of Section 21 and Order 29 Rule 3 of the Civil Procedure Rules, which require the issuance and service of the certificate of costs and order in respect of the judgement sought to be enforcement.
40. The Notice of Preliminary objection is upheld.
Order:
The application dated 19th October 2023 is dismissed with costs.
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E035 OF 2023
JANE NYAGUTHII WANG'ENDO……………………… 1stAPPLICANT
WINNIE NYAKIO WANG'ENDO (Suing through her
appointed Attorney JANE NYAGUTHII WANG'ENDO) …. 2ND APPLICANT
-VERSUS-
THE COUNTY GOVERNMENT OF NAIROBI ……… RESPONDENT
JUDGMENT
1. The applicant through the application dated 19th October 2023 seeks orders that;
An Order of Mandamus do issue compelling the Respondent to pay the Ex Parte Applicants the sum of K.Shs. 8,049,375.00, with interest at court rates, on account of Judgment dated 17th May 2019 and delivered against the Respondent on 23rd May 2019 in Nairobi Environment and Land Court Case Number 16 of 2003: Jane Nyaguthii Wanqiendo and Another v Nairobi City Council and 4 Others, together with costs taxed at K.Shs. 784,702.47.
The Applicant’s submissions:
2. The Applicants were the Plaintiffs in Nairobi Environment and Land Court Case Number 16 of 2003: Jane Nyaguthii Wanngendo and Another v Nairobi City Council and 4 Others.
3. On 23rd May 2019, Judgment dated 17th May 2019 was entered in favour of the applicants for exemplary damages amounting to the sim of Kshs.5 Million, special damages of Kshs. 3,049,375/- plus interest at court rates plus costs.
4. The applicant extracted and obtained a Decree dated 1st July 2021 lodged a Bill of Costs that culminated in the Ruling of 16th June 2022, for the sum of Kshs. 784, 702.47. A Certificate of Taxation dated 8th July 2022 was thereafter extracted. A notice was thereafter issued to the Respondent pursuant to Section 21 (2) of the Government Proceedings Act. The entire decretal sum and taxed costs remains outstanding.
The Applicants’ case:
5. The applicants rely on the case of Republic v County Secretary, Nairobi City County & another; Tom Oiienda & Associates (Exparte) (Judicial Review E1096 of 2020) 120231KEHC 23737 (KLR) (Judicial Review) (13 October 20231 (Judgment),where the court addressed itself on the true purpose of the provisions of Section 21 of the Government Proceedings Act as follows:
6. "19. The procedure in section 21 of the Government Proceedings Act is not meant to relieve the Respondents from meeting their legal and statutory obligation to satisfy decrees and orders of the Court, and its main purpose is to notify the Respondents of the debt is due to and for them to facilitate payment of the same."
7. They urge the court to note that the Respondent is not on record disputing the validity of the said Judgment issued in Nairobi ELCC Number 16 of 2003 and / or the resultant Decree and Certificate of Costs.
8. To date, the Respondent has not challenged the Judgment, Decree and / or Costs awarded in favour of the Applicants in Nairobi ELCC Number 16 of 2003, yet the Judgment remains unsatisfied close to 5 years later despite follow up for settlement of the same.
9. They submit that the Respondent cannot be heard to argue against the grant of the mandamus especially given that the Applicants have demonstrated substantive compliance with the provisions of Section 21 of the Government Proceedings Act through the letter dated 2nd February 2023 and in so far as adequate notice of the debt due was issued to the Respondent.
10. In any event, the savings provisions of the Government Proceedings Act at Section 34 (3) are unequivocal in so far as they provide as follows:
11. "This Act shall not operate to limit the discretion of the court to grant relief by way of mandamus in cases in which that relief might have been granted before the commencement of this Act, notwithstanding that by reason of the provisions of this Act some other and further remedy is available."
12. They also rely on the provisions of Article159 (2) (d) of the Constitution which eschew the sacrifice of substantive justice at the altar of procedural technicalities.
13. Reliance is placed in the case of Republic V Town Clerk of Webuye County Council & Another 2014 eKLR where the Learned Judge stated as follows:
14. "16. ... A decree holder's right to enjoy fruits of his judgment must not be thwarted. When faced with such a scenario, the Court should adopt an interpretation that favours enforcement and as far as possible secures accrued rights. My reasoning is underpinned by the values of the Constitution particularised under Article 10, the obligation of the court to do justice to the parties and to do so without delay under Article 159(2) (a) and (b) and the applicant's right of access to justice protected under Article 48 of the Constitution.
The Respondent’s case:
15. The Respondent raised grounds of opposition, that:
A. The Application herein and the entire proceedings instituted by the Ex Parte Applicants are a non-starter, misconceived, and fatally defective for failure to comply with the mandatory provisions of Section 21(1) and (2) of the Government Proceedings Act,
B. The Application herein and the entire proceedings are otherwise an abuse of Court process as the Applicants seek an order of Mandamus compelling the Respondent to pay a decretal sum, yet the Applicants have failed to satisfy the conditions precedent under the Government Proceedings Act, Cap 40 for settlement of that decretal sum and costs.
C. The ExParte Applicants ought not to have been granted leave to institute the proceedings herein as they had not satisfied the conditions precedent under the Government Proceedings Act, Cap 40 for settlement of that decretal sum.
16. The respondent also raised a Preliminary Objection on the grounds that:
A. The Application herein and the entire proceedings are misconceived, and fatally defective for failure of the Applicants to comply with the mandatory provisions of Section 21(1) and (2) of the Government Proceedings Act, Cap 40 Laws of Kenya.
B. The Application as filed is premature and an abuse of the Court process, and thus should be struck off.
Respondents’ submissions:
17. A Preliminary Objection was defined by Law, JA and Sir Charles Newbold P. in Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors [1969] EA 696. The aforesaid case was referred to with approval by the Court of Appeal in Suleiman Said Shabhal v Independent Electoral and Boundaries Commission & 3 Others [2014] eKLR. At page 700, Law, JA stated that:
" ...a 'preliminary objection' consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration."
18. The basis for seeking the grant of an order of mandamus flows from the judgment that was rendered in Nairobi Environment and Land court case Number 16 of 2003: Jane Nyaguthii Wang 'endo and another v Nairobi City Council and 4 others; together with taxed costs and interests.
19. Reliance is also placed in the case of Republic vs Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex-Parte Fredrick Manoah Egunza 120121 eKLR stated thus with regards to monetary decrees issued against the Government.
... 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."[Emphasis Added]
20. Execution against Government is not undertaken as in the ordinary civil cases for it has to comply with the provisions of Section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules. To that end, Section 21 (1) and (2) of the Government Proceedings Act, Cap 40 provides as follows:
"Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:
Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (f any) ordered to be paid to the applicant.
(2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General".
21. Section 21(5) of the Government Proceedings Act provides that the section applies to County Governments too:
"This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party."
22. Order 29, rule 3 of the Civil Procedure Rules, 2010 provides that the certificate referred to in Section 21 (1) of the Government Proceedings Act is either a Certificate of Order Against the Government or a Certificate of Order for Costs Against the Government with variations as the circumstances may require.
23. Order 29 Rule 3 of the Civil Procedure Rules provides thus: -
"Any application for a certificate under section 21 of the Government Proceedings Act (Cap. 40) (which relates to satisfaction of orders against the Government) shall be
made to a registrar or, in the case of a subordinate court, to the court; and any application under that section for a direction that a separate certificate be issued with respect to costs ordered to be paid to the applicant shall be made to the court and may be made ex parte without a summons, and such certificate shall be in one of Form Nos. 22 and 23 of Appendix A with such variations as circumstances may require."
24. Section 21 (1) and (2) of the Government Proceedings Act, as read with Order 29, rule 3 of the Civil Procedure Rules (quoted hereinabove) provide for the procurement from the Court, a Certificate of Order Against the Government or a Certificate of Order for Costs Against the Government by the successful litigant— and which certificate is in Form Nos. 22 and 23 of Appendix A of the Civil Procedure Rules, as a condition precedent when seeking to execute against Government.
25. The Applicant in whose favour the order (judgement) is made is required by law to apply for the certificate after the expiry of twenty-one (21) days from the date of the order and if there is an order for costs an application for the said certificate may be applied for after the costs have been taxed.
26. Order 29 Rule 3 uses the word "shall" in referring to the forms Nos 22 and 23 of Appendix A.
27. The Applicant ought to have made an Application to the Registrar for issuance of the Certificate of Order Against Government or a Certificate of Order for Costs Against the Government. The Applicants have neither made the said application nor procured the said certificates.
28. In the case of Republic v Principal Magistrate's Court at Mavoko & another Ex-Parte Joseph Ole Lenku Governor Kajiado County & another 12018] eKLR in explaining this statutory requirement stated thus: -
"... a party wishing to realize the fruits of a judgement against the government must first start by getting issued with a certificate of costs and certificate of order against the Government." [Emphasis Added]
29. The essence of the aforesaid procedure as observed in Permanent Secretary Office of The President, Ministry of Internal Security & Another Ex-parte Nassir Mwandihi [2014] eKLR, is to give adequate notice to the Government to make arrangements to satisfy the decree.
30. The Court further in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex-Parte Fredrick Manoah Egunza (supra) stated that once the Certificate of Order against the Government is served on the Hon. Attorney General, Section 21 (3) of the Government Proceedings Act then 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.
31. The Applicants, have, through their Application before this Honorable Court submitted a letter dated 2nd February 2023 (Exhibit JNW 6) and purported the same to be the Notice contemplated under Section 21 of the Government Proceedings Act, Cap 40 of the Laws of Kenya.
32. The said letter, is neither the notice contemplated under Section 21 of the Government Proceedings Act, nor is it in forms 2 or 23 provided for under Order 29 (3) of the Civil Procedure Rules.
Analysis and determination;
33. A Preliminary Objection was defined by Law, JA and Sir Charles Newbold P. in Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors [1969] EA 696. The aforesaid case was referred to with approval by the Court of Appeal in Suleiman Said Shabhal v Independent Electoral and Boundaries Commission & 3 Others [2014] eKLR. At page 700, Law, JA stated that:
" ...a 'preliminary objection' consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration."
34. The applicant extracted and obtained the Decree dated 1st July 2021.The Applicant thereafter lodged a Bill of Costs that culminated in the Ruling of 16th June 2022, for the Sum of K.Shs. 784,702.47.A Certificate of Taxation dated 8th July 2022 was thereafter extracted. A notice was thereafter issued to the Respondent pursuant to Section 21 (2) of the Government Proceedings Act.
35. In Musa Tapem v Principal Secretary Ministry of Interior & Co-ordination of National Government &
another [2021] eKLR; where the court dismissed an application such as the one before this court
for failure to comply with the mandatory provisions of the law. The Court held as follows: -"I find that the ex parte applicant has not complied with the provisions of section 21 and Order 29 Rule 3 of the Civil Procedure Rules, which require the issuance and service of the certificate of costs and the order in respect of the judgement sought to be enforcement. Counsel for the ex parte applicant has not even addressed the issuance and service of the certificate of costs and the order sought to be enforced in his written submissions...I find that counsel's submissions appear to be attractive, but they miss the point that the provisions of section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules, have not been complied with as required of the ex parte applicant.
36. In this regard, I further find that the elaborate procedural requirements of the foregoing statutory provisions are intended and do promote transparency in the management of public finance, which is a constitutional requirement as set out in article 201 of the 2010 Constitution... "
37. Republic V Town Clerk of Webuye County Council & Another j20141 eKLR where the Learned Judge stated as follows:
"16. ... A decree holder's right to enjoy fruits of his judgment must not be thwarted. When faced with such a scenario, the Court should adopt an interpretation that favours enforcement and as far as possible secures accrued rights. My reasoning is underpinned by the values of the Constitution particularised under Article 10, the obligation of the court to do justice to the parties and to do so without delay under Article 159(2) (a) and (b) and the applicant's right of access to justice protected under Article 48 of the Constitution.
38. It is this court’s finding that the issue is more than a mere technicality that can be remedies under Article 159 of the Constitution.
Disposition;
39. The Ex parte Applicant did not comply with the provisions of Section 21 and Order 29 Rule 3 of the Civil Procedure Rules, which require the issuance and service of the certificate of costs and order in respect of the judgement sought to be enforcement.
40. The Notice of Preliminary objection is upheld.
Order:
The application dated 19th October 2023 is dismissed with costs.