[1] The Notice of Motion dated 7 th August 2024 was brought by the ex parte applicant (hereinafter, “the applicant”) pursuant to the provisions of Order 53 Rule 1 and 2 for orders that:
[a] The Court be pleased to issue an order of Mandamus against the respondents compelling them to release to the applicant the sum of Kshs. 2,482,210/= being the remaining balance of the decretal sum exclusive of interest in Homa Bay Chief Magistrate’s Civil Case No. 40 of 2018 which sum is being withheld by the respondents.
[b] Costs of the application be provided for.
[2] The application was premised on the grounds that the applicant filed Homa Bay Chief Magistrate’s Civil Case No. 40 of 2018 against the 4 th respondent for a liquidated sum of Kshs. 5,082, 210/= for services rendered by the applicant; that the parties entered into a consent dated 28 th October 2019 which was adopted as the judgment of the court; that thereafter a decree was issued for the payment of the sum of Kshs. 5,082,210/= by the 4 th respondent.
[3] The applicant further averred that the said amount together with costs was to be paid by the 4 th respondent by way of monthly instalments with effect from 30 th November 2019. It contended that, although the respondents made partial payments, there remains a balance of Kshs. 2,482,210/=, exclusive of interest which the respondents are still withholding and have neglected to pay in spite of demand. Hence, the applicant contended that since it is prohibited by Section 21 of the Government Proceedings Act from enforcing execution of the decree by way of attachment and sale of the 4 th respondent’s properties, it was constrained to file the instant application.
[4] The application was supported by the affidavit sworn on behalf of the applicant by Kefa Onyango Sigona . The affiant reiterated the factual basis of the application and exhibited copies of the consent judgment, decree and Certificate of Order against the Government to his Supporting Affidavit in support of the application.
[5] The respondents opposed the application. They relied on the Replying Affidavit sworn on their behalf on 30 th September 2020 by the Solomon Obiero , the 4 th respondent’s County Executive Committee Member for Finance who is the 5 th respondent herein. He contended that the application is not only fatally defective, but has also been brought in bad faith and therefore ought to be dismissed. The 5 th respondent averred that the circumstances giving rise to the judgment upon which these proceedings are premised were grossly irregular and the 4 th respondent never got the opportunity to defend itself against what, in their view, was a frivolous and baseless claim with no possibility of success if defended.
[6] The 5 th respondent further averred that the applicant’s Chamber Summons was amended without leave and therefore the leave that was granted herein was irregularly granted ex parte . He further averred that even after leave was granted, albeit irregularly, the applicant did not file the substantive application within the 14 days granted by the court. The 5 th respondent further took issue with the manner in which the applicant sought for extension of time and the deliberate failure by the applicant to serve them with the said application for extension of time.
[7] While the 5 th respondent conceded that a consent judgment was recorded in favour of the applicant before the lower court, it was his contention that the said judgment was entered into irregularly. He averred that their erstwhile counsel acted without authority and therefore the consent judgment is null and void. He posited that, in the circumstances, the 4 th respondent ought to be given an opportunity to present its defence before the lower court for a determination on the merits.
[8] The 5 th respondent further conceded that pursuant to the consent judgment, the respondents have made partial payment to the applicant to the tune of Kshs. 3,000,000/=, leaving a balance of Kshs. 2,482,210/= as at the date of the deposition. He explained that the payments were made within the constraints of County’s fiscal budget; and therefore the delay in paying the balance was not as a result of willful neglect. In the respondent’s view, the applicant had not demonstrated any breach of the provisions of the Government Proceedings Act. They contended that the orders sought would go against public interest and prejudice service delivery by the 4 th respondent.
[9] The application was canvassed by way of written submissions, pursuant to the directions given herein on 30 th September 2024. In its written submissions dated 18 th October 2024, the applicant reiterated the factual basis of the application and proposed a single issue for determination, namely, whether an order of Mandamus should issue as prayed. The applicant made reference to Section 21 of the Government Proceedings Act and the case of Kisya Investments Ltd v Attorney General [2005] 1 KLR 24 as to the rationale for the immunity against the normal execution proceedings against the Government. It urged the Court to find that it has fully complied with the necessary prerequisite steps prior to the filing of the instant application.
[10] The applicant also addressed the Court on the scope and nature of an order of Mandamus. It made reference to various authorities, including Republic v Kenya National Examination Council Ex Parte Gathenji and others [1997] eKLR and urged the Court to find that it has no other way of recovering the sums due to it as decreed in Homa Bay Chief Magistrate’s Civil Case No. 40 of 2018 . Accordingly, the applicant urged the Court to allow the application dated 7 th August 2024 and grant the order of Mandamus as prayed.
[11] The respondents relied on their written submission dated 2 nd December 2024 in which they proposed the following issues for determination:
[a] Whether the deponent of the Supporting Affidavit dated 7 th August 2024 had the capacity to make the deposition.
[b] Whether lack of demand notice before institution of proceedings was fair.
[c] Whether the consent judgment entered into by their advocate has merit.
[d] Whether the applicant is entitled to the orders sought.
[e] Whether the applicant will suffer prejudice if the prayers sought are not granted.
[12] The respondent impugned the applicant’s Supporting Affidavit and contended that the deponent lacked the requisite authority to make the deposition on behalf of the applicant company. They took the view that it was imperative for a letter of authority to be annexed to the affidavit for purposes of compliance with Order 1 Rule 13(1) and (2) of the Civil Procedure Rules. The respondent relied on Leo Investments Ltd v Trident Insurance Co. Ltd [2014] eKLR , Affordable Homes Africa Ltd v Ian Henderson & 2 others [2004] eKLR and East African Portland Cement Ltd v Capital Markets Authority & 4 others [2014] eKLR for the proposition that failure to attach a company resolution or letter of authority renders the affidavit defective and inadmissible.
[13] The respondent also submitted that failure by the applicant to issue a demand notice prior to the institution of this suit amounts to a violation of Article 47 of the Constitution and Section 4(3) of the Fair Administrative Action Act in that it denied them an opportunity to address the issues complained of prior to litigation. They cited the cases of Republic v Twon Clerk of Webuye County Council & another [2014] eKLR, Paul Njuguna v Barclays Bank of Kenya Limited [2016] eKLR and Republic v Principal Secretary, Ministry of Interior & Coordination of National Government, Ex Parte Salim Seif, Lamu County Government [2020] eKLR to buttress their arguments.
[14] In respect of the consent judgment entered into by the parties in Homa Bay Chief Magistrate’s Civil Case No. 40 of 2018, the respondents were of the posturing that the same is void ab initio due to lack of authority from the 4 th respondent for the advocate to enter into that consent on its behalf. They anchored this argument on Order 9 Rule 9 of the Civil Procedure Rules and Section 3 of the Advocates Act, Cap 16 and cited the cases of Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266 and Kenya Commercial Bank v Muiri Coffee Estate Ltd [1990] KLR 459 in urging the Court to find that the consent judgment is null and void and therefore not binding on the 4 th respondent.
[15] On whether the applicant is entitled to the order of Mandamus, the respondents likewise adverted to the decision of the Court of Appeal in Kenya National Examinations Council v Republic, Ex Parte Geoffrey Gathenji Njoroge , (supra). They argued that the applicant has neither demonstrated a clear and unequivocal duty to pay the decretal sum or shown that there is no other legal or administrative remedy available. They reiterated their stance that under Article 207(3) of the Constitution and Section 109(6) of the Public Finance Management Act, 2012, any expenditure of public funds, including payment of decretal sums, must comply with established statutory procedures, including approval through annual budgetary processes.
[16] The respondents relied on Republic v Principal Secretary, Ministry of Internal Security, Ex Parte Schon Noorani [2018] eKLR and Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security, Ex Parte Fredrick Manoah Egunza to support their argument that Mandamus order cannot issue to compel payment where the respondent has demonstrated financial constraints and the need to adhere to statutory budgeting processes. They also cited Section 21(4) of the Government Proceedings Act which prohibits attachment and sale of government property.
[17] Lastly, the respondents submitted that, although the burden of proof was on the applicant to prove the prejudice it stands to suffer if the order of Mandamus is declined, no such proof was availed. They relied on APA Insurance Limited v Michael Kinyanjui Muturi [2016] eKLR for the basic rule of evidence that he who alleges must prove. Thus, the respondents urged the Court to dismiss the application dated 7 th August 2024 with costs.
[18] Having given due consideration to the said application, the affidavits filed in respect thereof by the parties as well as the written submissions filed by learned counsel, the issues for determination are as follows:
[a] Whether the Supporting Affidavit dated 7 th August 2024 is null and void for lack of authority.
[b] Whether the consent judgment entered into by their advocate is null and void for lack of instructions.
[c] Whether the applicant is entitled to the orders sought.
A. On authority to swear the Supporting Affidavit:
[19] The respondents impugned the Supporting Affidavit sworn on behalf of the applicant by Kefa Onyango Sigona, contending that no letter of authority was annexed thereto in compliance with Order 1 Rule 13(2) of the Civil Procedure Rules. Rule 13 states:
(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.
(2) The authority shall be in writing signed by the party giving it and shall be filed in the case.
[20] It is immediately plain that that, from a contextual appreciation of that provision, it does not support the argument advanced by the applicant. First and foremost, it is in relation to institution of a suit by several plaintiffs. Even assuming that the respondents had in mind the provisions of Order 4 Rule 1(4) of the Civil Procedure Rules still not much would turn on their technical objection to the applicant’s Supporting Affidavit. The mischief sought to be prevented by Rule 1(4) was well explicated by the Court of Appeal in Spire Bank Limited v Land Registrar & 2 others [2019] eKLR as follows:
“It is essential to appreciate that the intention behind order 4 rule 1 (4) was to safeguard the corporate entity by ensuring that only an authorized officer could institute proceedings on its behalf. This was to address the mischief of unauthorized persons instituting proceedings on behalf of corporations, and obtaining fraudulent or unwarranted orders from the court. The company’s seal that is affixed under the hand of the directors ensured that they were aware of, and had authorized such proceedings together with the persons enlisted to conduct them. And where evidence was produced to demonstrate that a person was unauthorized, the burden shifted to such officer to demonstrate that they were authorized under the company seal. With this in mind, we dare say that the provision was not intended to be utilized as a procedural technicality to strike out suits, particularly where no evidence was produced to demonstrate that the officer was unauthorized.”
[21] It was therefore sufficient for Kefa Onyango Sigona to aver, as he did that he had been duly authorized to make the deposition. In Makupa Transit Shade Limited & Another v Kenya Ports Authority & Another [2015] eKLR, the Court of Appeal held:
“…In our view, the Authority, as with other corporate bodies, has its affidavits deponed on its behalf by persons with knowledge of the issues at hand who have been so authorised by it. It was therefore sufficient for the deponents to state that “they were duly authorised.” It was then up to the appellants to demonstrate by evidence that they were not so authorised…”
[22] Accordingly, the evidential burden shifted to the respondents to prove that Kefa Onyango Sigona had no such authority, which burden was not discharged herein. It is therefore my finding that the applicant’s Supporting Affidavit is valid and properly before the Court notwithstanding that no letter of authority was annexed to the Supporting Affidavit. Indeed, as has oft been stated, judicial review is a sui generis process and it is not for nothing that leave was applied for and granted before the substantive application was filed.
B. Whether the consent judgment entered into by the respondents’ advocate is null and void for lack of instructions:
[23] There is no dispute that, pursuant to a consent judgment entered into by the parties in the applicant’s favour, a Decree and Certificate of Costs ensued in Homa Bay CMCC No. E040 of 2018. The decretal sum was to be settled by monthly instalments and the last payment of Kshs. 2,082,210/= was due on 31 st January 2010 but has not been paid to date. The applicant deposed that it has sent numerous reminders and demands for payment to the respondents without any response.
[24] The respondents impugned the consent judgment contending that the Advocate who approved and signed the consent on behalf of the 4 th respondent had no authority to do so. They accordingly prayed that the same be declared null and void.
[25] It is settled law that counsel may compromise a matter on behalf of a client, so long as such authority is exercised bona fide and not in contravention of the client’s express negative instructions. Further, as submitted by the appellant, a consent order is in the nature of a contract and may only be set aside on grounds of fraud, misrepresentation, or any other sufficient cause.
[26] Hence, in Flora N. Wasike v Destimo Wamboko (supra) the Court of Appeal approved an opinion expressed in Setton on Judgments and Orders (7 th Edition) Vol. 1, page 124 that:
"Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them ... and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court ...; or if the consent was given without sufficient material facts, or in general for a reason which would enable the court to set aside an agreement."
[27] Similarly, in the case of Brooke Bond Liebig (T) Limited v Mallya [1975] E.A. , Law JA, stated the law at p. 269 in these terms:-
'The circumstances in which a consent judgment may be interfered with were considered by this court in Hirani vs Kassam (1952), 19EACA 131, where the following passage from Seton on Judgments and Orders, 7th edhition, Vol.1 p.124 was approved:
' prima facie ,any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them...and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court...or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement."
[28] For the consent judgment to be set aside, the respondent needed to demonstrate that it was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement, such as fraud, misrepresentation or mistake.
[29] It is trite however that an advocate has ostensible authority to compromise a suit on behalf of his client. In Samuel Mbugua Ikumbu v Barclays Bank of Kenya Ltd (supra) wherein it was held that:
“An advocate has general authority to compromise on behalf of his client as long as he is acting bona fide and not contrary to express negative direction. In the absence of proof of any express negative direction, the order shall be binding.” (see also Samuel Wambugu Mwangi vs. Othaya Boys High School (supra)
[30] Similarly, in Kenya Commercial Bank Limited v Benjoh Amalgamated Limited & Another [1998] KECA 236 (KLR), it was pointed out that:
The extent of authority of a solicitor to compromise is set out in a passage in The Supreme Court Practice 1976 (Vol.2) paragraph 2013 page 620 as follows:-
"Authority of Solicitor- a solicitor has a general authority to compromise on behalf of his client, if he acts bona fide and not contrary to express negative direction; and it would seem that a solicitor acting as agent for the principal solicitor has the same power (Re Newen, [1903] 1 Ch pp 817,818; Little vs Spreadbury, [1910]2 KB 658). No limitation of the implied authority avails the client as against the other side unless such limitation has been brought to their notice- see Welsh vs Roe [1918 - (9] All E.R Rep 620."
[31] In the circumstances, rather than merely allege a mistake on behalf of his counsel, it was incumbent upon the respondents to go further and demonstrate that they had given the Advocate express instructions to the contrary. Since this was not done, it is my finding that the consent judgment is valid and enforceable. Indeed, it is instructive that the respondents have honoured the decree by way of partial payment of more than half of the sum due.
C. Whether the applicant is entitled to the orders sought.
[32] The remedy of Mandamus is provided for in Article 23(3)(f) of the Constitution and Order 53 of the Civil Procedure Rules . Its scope was well explicated in Halsbury's Laws of England, 4 th Edition, Volume 1 thus:
"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 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..."
[33] That the remedy is particularly efficacious in situations where a decree and a Certificate of Costs has been issued against the Government was well-explicated by Hon. Githua, J. in Republic v Permanent Secretary Ministry of State for Provincial Administration and Internal Security , Ex Parte Fredrick Manoah Egunza [2012] eKLR thus:
“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.”
[34] For purposes of compliance with Section 21 of the Government Proceedings Act, Order 29 Rule 3 of the Civil Procedure Rules, requires that:
“Any application for a certificate under section 21 of the Government Proceedings Act (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.”
[35] It is also common ground that costs were similarly agreed on and a Certificate of Costs issued. The applicant also exhibited a Certificate of Order and Costs against the Government as an annexure to the Supporting Affidavit to demonstrate compliance with Section 21(1) and (2) of the Government Proceedings Act, which state:
(1) 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 (if 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.
[36] The rationale for this stringent procedure was well captured in Kisya Investments Ltd v Attorney General & Another [2005] 1 KLR 74 thus:
“History and rationale of Government’s immunity from execution arises from the following:- Firstly, there has been a policy in respect of Parliamentary control over revenue and this is threefold and is exercised in respect of (i). The raising of revenue- (by taxation or borrowing); (ii). its expenditure; and (iii). The audit of public accounts. The satisfaction of decrees or judgements is deemed to be an expenditure by Parliament and as a result of this must be justified in law and provided for in the Government’s expenditure. It is for this reason that section 32 of the Government Proceedings Act provides that any expenditure incurred by or on behalf of the Government by reason of this Act shall be defrayed out of the moneys provided by Parliament. Parliamentary control over expenditure is based upon the principle that all expenditure must rest upon legislative authority and no payment out of public funds is legal unless it is authorised by statute, and any unauthorised payment may be recovered. SEE HALSBURY’S LAWS OF ENGALAND 4 TH EDN VOL. 11 PARA 970, 971 AND 1370. As a result of the foregoing, which was borrowed from the Crown Proceedings Act, 1947 (section 37) of England, this is a warning that any payment by Government must be covered by some appropriation. It is said that Parliament is very jealous of its control over the expenditure and this is as it should be. No Ministry or Department has any ready funds at all times to satisfy decrees or judgements. While existence of claims and decrees may be known to the Ministries and Departments, they have to notify the Ministry of Finance and Treasury of the same so that payment is arranged for or provisions made in the Government expenditure. SEE AUCKLAND HARBOUR BOARD VS.R (1924) AC 318, 326. The second situation, which arises from the above, is that once a decree or judgement is obtained against the Government, it would require some reasonable time to have it forwarded to the ministry of Finance, Treasury, Comptroller and Auditor General etc. for scrutiny and approvals for it to be paid from the Consolidated Fund. The Ministries and Departments do not have their “own” funds to settle such decrees or payments and considering the nature of the Government structure, procedures, red tape and large number of claims, this could take a long time. If execution and/or attachment against the Government were allowed, there is no doubt that the Government will not be able to pay immediately upon passing of decrees and judgements and will be inundated with executions and attachments of its assets day in, day out. Its buildings will be attached and its plants and equipment will be attached, its furniture and office equipment will be attached, its vehicles, aircraft, ship and boats will be attached. There will be no end to the list of likely assets to be attached and auctioned by the auctioneer’s hammer. No Government can possibly survive such an onslaught. The Government and therefore the state operations will ground to a halt and paralyzed and soon the Government will not only be bankrupt but it’s Constitutional and Statutory duties will not be capable of performance and this will lead to chaos, anarchy and the breakdown of the Rule of Law. This is the rationale or the objective of the Law that prohibits execution against and attachment of the Government assets and property.” (also see Republic v Permanent Secretary Office of the President Ministry of Internal Security & Another, Ex Parte Nassir Mwandihi, supra)
[37] That the above provisions are equally applicable to County Governments is explicit in Subsection (5). It states:
(5) 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.
[38] There is no doubt that the applicant applied with the foregoing provisions of the law. Indeed, it is common ground that the respondents were duly served with the Certificate of Order and Costs against the Government. As a matter of fact, they honoured the consent judgment and decree by making partial payments to the tune of Kshs. 3,000,000/= in compliance with Section 21(3) which states that:
(3) 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:
[39] It is plain therefore that by dint of Section 21(4) of the Government Proceedings Act attachment and sale of the 4 th respondent’s property was not an option, for that provision is explicit that:
(4) …no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.”
[40] In the case of Republic v the Attorney General & Another, Ex parte James Alfred Keroso [2013] eKLR the point was made that:
“...Unless something is done, he will forever be left babysitting 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 judgments have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgment 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..."
[41] For the reasons aforementioned, I am satisfied that the application dated 6 th November 2024 is meritorious. The same is hereby allowed and orders granted as follows:
[a] That an order of Mandamus be and is hereby issued against the respondents compelling Solomon Obiero , the County Executive Committee Member for Finance of the County Government of Homa Bay to release to the applicant the sum of Kshs. 2,482,210/= being the remaining balance of the decretal sum exclusive of interest in Homa Bay Chief Magistrate’s Civil Case No. 40 of 2018 which sum is being
[...truncated]
[a] The Court be pleased to issue an order of Mandamus against the respondents compelling them to release to the applicant the sum of Kshs. 2,482,210/= being the remaining balance of the decretal sum exclusive of interest in Homa Bay Chief Magistrate’s Civil Case No. 40 of 2018 which sum is being withheld by the respondents.
[b] Costs of the application be provided for.
[2] The application was premised on the grounds that the applicant filed Homa Bay Chief Magistrate’s Civil Case No. 40 of 2018 against the 4 th respondent for a liquidated sum of Kshs. 5,082, 210/= for services rendered by the applicant; that the parties entered into a consent dated 28 th October 2019 which was adopted as the judgment of the court; that thereafter a decree was issued for the payment of the sum of Kshs. 5,082,210/= by the 4 th respondent.
[3] The applicant further averred that the said amount together with costs was to be paid by the 4 th respondent by way of monthly instalments with effect from 30 th November 2019. It contended that, although the respondents made partial payments, there remains a balance of Kshs. 2,482,210/=, exclusive of interest which the respondents are still withholding and have neglected to pay in spite of demand. Hence, the applicant contended that since it is prohibited by Section 21 of the Government Proceedings Act from enforcing execution of the decree by way of attachment and sale of the 4 th respondent’s properties, it was constrained to file the instant application.
[4] The application was supported by the affidavit sworn on behalf of the applicant by Kefa Onyango Sigona . The affiant reiterated the factual basis of the application and exhibited copies of the consent judgment, decree and Certificate of Order against the Government to his Supporting Affidavit in support of the application.
[5] The respondents opposed the application. They relied on the Replying Affidavit sworn on their behalf on 30 th September 2020 by the Solomon Obiero , the 4 th respondent’s County Executive Committee Member for Finance who is the 5 th respondent herein. He contended that the application is not only fatally defective, but has also been brought in bad faith and therefore ought to be dismissed. The 5 th respondent averred that the circumstances giving rise to the judgment upon which these proceedings are premised were grossly irregular and the 4 th respondent never got the opportunity to defend itself against what, in their view, was a frivolous and baseless claim with no possibility of success if defended.
[6] The 5 th respondent further averred that the applicant’s Chamber Summons was amended without leave and therefore the leave that was granted herein was irregularly granted ex parte . He further averred that even after leave was granted, albeit irregularly, the applicant did not file the substantive application within the 14 days granted by the court. The 5 th respondent further took issue with the manner in which the applicant sought for extension of time and the deliberate failure by the applicant to serve them with the said application for extension of time.
[7] While the 5 th respondent conceded that a consent judgment was recorded in favour of the applicant before the lower court, it was his contention that the said judgment was entered into irregularly. He averred that their erstwhile counsel acted without authority and therefore the consent judgment is null and void. He posited that, in the circumstances, the 4 th respondent ought to be given an opportunity to present its defence before the lower court for a determination on the merits.
[8] The 5 th respondent further conceded that pursuant to the consent judgment, the respondents have made partial payment to the applicant to the tune of Kshs. 3,000,000/=, leaving a balance of Kshs. 2,482,210/= as at the date of the deposition. He explained that the payments were made within the constraints of County’s fiscal budget; and therefore the delay in paying the balance was not as a result of willful neglect. In the respondent’s view, the applicant had not demonstrated any breach of the provisions of the Government Proceedings Act. They contended that the orders sought would go against public interest and prejudice service delivery by the 4 th respondent.
[9] The application was canvassed by way of written submissions, pursuant to the directions given herein on 30 th September 2024. In its written submissions dated 18 th October 2024, the applicant reiterated the factual basis of the application and proposed a single issue for determination, namely, whether an order of Mandamus should issue as prayed. The applicant made reference to Section 21 of the Government Proceedings Act and the case of Kisya Investments Ltd v Attorney General [2005] 1 KLR 24 as to the rationale for the immunity against the normal execution proceedings against the Government. It urged the Court to find that it has fully complied with the necessary prerequisite steps prior to the filing of the instant application.
[10] The applicant also addressed the Court on the scope and nature of an order of Mandamus. It made reference to various authorities, including Republic v Kenya National Examination Council Ex Parte Gathenji and others [1997] eKLR and urged the Court to find that it has no other way of recovering the sums due to it as decreed in Homa Bay Chief Magistrate’s Civil Case No. 40 of 2018 . Accordingly, the applicant urged the Court to allow the application dated 7 th August 2024 and grant the order of Mandamus as prayed.
[11] The respondents relied on their written submission dated 2 nd December 2024 in which they proposed the following issues for determination:
[a] Whether the deponent of the Supporting Affidavit dated 7 th August 2024 had the capacity to make the deposition.
[b] Whether lack of demand notice before institution of proceedings was fair.
[c] Whether the consent judgment entered into by their advocate has merit.
[d] Whether the applicant is entitled to the orders sought.
[e] Whether the applicant will suffer prejudice if the prayers sought are not granted.
[12] The respondent impugned the applicant’s Supporting Affidavit and contended that the deponent lacked the requisite authority to make the deposition on behalf of the applicant company. They took the view that it was imperative for a letter of authority to be annexed to the affidavit for purposes of compliance with Order 1 Rule 13(1) and (2) of the Civil Procedure Rules. The respondent relied on Leo Investments Ltd v Trident Insurance Co. Ltd [2014] eKLR , Affordable Homes Africa Ltd v Ian Henderson & 2 others [2004] eKLR and East African Portland Cement Ltd v Capital Markets Authority & 4 others [2014] eKLR for the proposition that failure to attach a company resolution or letter of authority renders the affidavit defective and inadmissible.
[13] The respondent also submitted that failure by the applicant to issue a demand notice prior to the institution of this suit amounts to a violation of Article 47 of the Constitution and Section 4(3) of the Fair Administrative Action Act in that it denied them an opportunity to address the issues complained of prior to litigation. They cited the cases of Republic v Twon Clerk of Webuye County Council & another [2014] eKLR, Paul Njuguna v Barclays Bank of Kenya Limited [2016] eKLR and Republic v Principal Secretary, Ministry of Interior & Coordination of National Government, Ex Parte Salim Seif, Lamu County Government [2020] eKLR to buttress their arguments.
[14] In respect of the consent judgment entered into by the parties in Homa Bay Chief Magistrate’s Civil Case No. 40 of 2018, the respondents were of the posturing that the same is void ab initio due to lack of authority from the 4 th respondent for the advocate to enter into that consent on its behalf. They anchored this argument on Order 9 Rule 9 of the Civil Procedure Rules and Section 3 of the Advocates Act, Cap 16 and cited the cases of Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266 and Kenya Commercial Bank v Muiri Coffee Estate Ltd [1990] KLR 459 in urging the Court to find that the consent judgment is null and void and therefore not binding on the 4 th respondent.
[15] On whether the applicant is entitled to the order of Mandamus, the respondents likewise adverted to the decision of the Court of Appeal in Kenya National Examinations Council v Republic, Ex Parte Geoffrey Gathenji Njoroge , (supra). They argued that the applicant has neither demonstrated a clear and unequivocal duty to pay the decretal sum or shown that there is no other legal or administrative remedy available. They reiterated their stance that under Article 207(3) of the Constitution and Section 109(6) of the Public Finance Management Act, 2012, any expenditure of public funds, including payment of decretal sums, must comply with established statutory procedures, including approval through annual budgetary processes.
[16] The respondents relied on Republic v Principal Secretary, Ministry of Internal Security, Ex Parte Schon Noorani [2018] eKLR and Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security, Ex Parte Fredrick Manoah Egunza to support their argument that Mandamus order cannot issue to compel payment where the respondent has demonstrated financial constraints and the need to adhere to statutory budgeting processes. They also cited Section 21(4) of the Government Proceedings Act which prohibits attachment and sale of government property.
[17] Lastly, the respondents submitted that, although the burden of proof was on the applicant to prove the prejudice it stands to suffer if the order of Mandamus is declined, no such proof was availed. They relied on APA Insurance Limited v Michael Kinyanjui Muturi [2016] eKLR for the basic rule of evidence that he who alleges must prove. Thus, the respondents urged the Court to dismiss the application dated 7 th August 2024 with costs.
[18] Having given due consideration to the said application, the affidavits filed in respect thereof by the parties as well as the written submissions filed by learned counsel, the issues for determination are as follows:
[a] Whether the Supporting Affidavit dated 7 th August 2024 is null and void for lack of authority.
[b] Whether the consent judgment entered into by their advocate is null and void for lack of instructions.
[c] Whether the applicant is entitled to the orders sought.
A. On authority to swear the Supporting Affidavit:
[19] The respondents impugned the Supporting Affidavit sworn on behalf of the applicant by Kefa Onyango Sigona, contending that no letter of authority was annexed thereto in compliance with Order 1 Rule 13(2) of the Civil Procedure Rules. Rule 13 states:
(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.
(2) The authority shall be in writing signed by the party giving it and shall be filed in the case.
[20] It is immediately plain that that, from a contextual appreciation of that provision, it does not support the argument advanced by the applicant. First and foremost, it is in relation to institution of a suit by several plaintiffs. Even assuming that the respondents had in mind the provisions of Order 4 Rule 1(4) of the Civil Procedure Rules still not much would turn on their technical objection to the applicant’s Supporting Affidavit. The mischief sought to be prevented by Rule 1(4) was well explicated by the Court of Appeal in Spire Bank Limited v Land Registrar & 2 others [2019] eKLR as follows:
“It is essential to appreciate that the intention behind order 4 rule 1 (4) was to safeguard the corporate entity by ensuring that only an authorized officer could institute proceedings on its behalf. This was to address the mischief of unauthorized persons instituting proceedings on behalf of corporations, and obtaining fraudulent or unwarranted orders from the court. The company’s seal that is affixed under the hand of the directors ensured that they were aware of, and had authorized such proceedings together with the persons enlisted to conduct them. And where evidence was produced to demonstrate that a person was unauthorized, the burden shifted to such officer to demonstrate that they were authorized under the company seal. With this in mind, we dare say that the provision was not intended to be utilized as a procedural technicality to strike out suits, particularly where no evidence was produced to demonstrate that the officer was unauthorized.”
[21] It was therefore sufficient for Kefa Onyango Sigona to aver, as he did that he had been duly authorized to make the deposition. In Makupa Transit Shade Limited & Another v Kenya Ports Authority & Another [2015] eKLR, the Court of Appeal held:
“…In our view, the Authority, as with other corporate bodies, has its affidavits deponed on its behalf by persons with knowledge of the issues at hand who have been so authorised by it. It was therefore sufficient for the deponents to state that “they were duly authorised.” It was then up to the appellants to demonstrate by evidence that they were not so authorised…”
[22] Accordingly, the evidential burden shifted to the respondents to prove that Kefa Onyango Sigona had no such authority, which burden was not discharged herein. It is therefore my finding that the applicant’s Supporting Affidavit is valid and properly before the Court notwithstanding that no letter of authority was annexed to the Supporting Affidavit. Indeed, as has oft been stated, judicial review is a sui generis process and it is not for nothing that leave was applied for and granted before the substantive application was filed.
B. Whether the consent judgment entered into by the respondents’ advocate is null and void for lack of instructions:
[23] There is no dispute that, pursuant to a consent judgment entered into by the parties in the applicant’s favour, a Decree and Certificate of Costs ensued in Homa Bay CMCC No. E040 of 2018. The decretal sum was to be settled by monthly instalments and the last payment of Kshs. 2,082,210/= was due on 31 st January 2010 but has not been paid to date. The applicant deposed that it has sent numerous reminders and demands for payment to the respondents without any response.
[24] The respondents impugned the consent judgment contending that the Advocate who approved and signed the consent on behalf of the 4 th respondent had no authority to do so. They accordingly prayed that the same be declared null and void.
[25] It is settled law that counsel may compromise a matter on behalf of a client, so long as such authority is exercised bona fide and not in contravention of the client’s express negative instructions. Further, as submitted by the appellant, a consent order is in the nature of a contract and may only be set aside on grounds of fraud, misrepresentation, or any other sufficient cause.
[26] Hence, in Flora N. Wasike v Destimo Wamboko (supra) the Court of Appeal approved an opinion expressed in Setton on Judgments and Orders (7 th Edition) Vol. 1, page 124 that:
"Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them ... and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court ...; or if the consent was given without sufficient material facts, or in general for a reason which would enable the court to set aside an agreement."
[27] Similarly, in the case of Brooke Bond Liebig (T) Limited v Mallya [1975] E.A. , Law JA, stated the law at p. 269 in these terms:-
'The circumstances in which a consent judgment may be interfered with were considered by this court in Hirani vs Kassam (1952), 19EACA 131, where the following passage from Seton on Judgments and Orders, 7th edhition, Vol.1 p.124 was approved:
' prima facie ,any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them...and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court...or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement."
[28] For the consent judgment to be set aside, the respondent needed to demonstrate that it was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement, such as fraud, misrepresentation or mistake.
[29] It is trite however that an advocate has ostensible authority to compromise a suit on behalf of his client. In Samuel Mbugua Ikumbu v Barclays Bank of Kenya Ltd (supra) wherein it was held that:
“An advocate has general authority to compromise on behalf of his client as long as he is acting bona fide and not contrary to express negative direction. In the absence of proof of any express negative direction, the order shall be binding.” (see also Samuel Wambugu Mwangi vs. Othaya Boys High School (supra)
[30] Similarly, in Kenya Commercial Bank Limited v Benjoh Amalgamated Limited & Another [1998] KECA 236 (KLR), it was pointed out that:
The extent of authority of a solicitor to compromise is set out in a passage in The Supreme Court Practice 1976 (Vol.2) paragraph 2013 page 620 as follows:-
"Authority of Solicitor- a solicitor has a general authority to compromise on behalf of his client, if he acts bona fide and not contrary to express negative direction; and it would seem that a solicitor acting as agent for the principal solicitor has the same power (Re Newen, [1903] 1 Ch pp 817,818; Little vs Spreadbury, [1910]2 KB 658). No limitation of the implied authority avails the client as against the other side unless such limitation has been brought to their notice- see Welsh vs Roe [1918 - (9] All E.R Rep 620."
[31] In the circumstances, rather than merely allege a mistake on behalf of his counsel, it was incumbent upon the respondents to go further and demonstrate that they had given the Advocate express instructions to the contrary. Since this was not done, it is my finding that the consent judgment is valid and enforceable. Indeed, it is instructive that the respondents have honoured the decree by way of partial payment of more than half of the sum due.
C. Whether the applicant is entitled to the orders sought.
[32] The remedy of Mandamus is provided for in Article 23(3)(f) of the Constitution and Order 53 of the Civil Procedure Rules . Its scope was well explicated in Halsbury's Laws of England, 4 th Edition, Volume 1 thus:
"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 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..."
[33] That the remedy is particularly efficacious in situations where a decree and a Certificate of Costs has been issued against the Government was well-explicated by Hon. Githua, J. in Republic v Permanent Secretary Ministry of State for Provincial Administration and Internal Security , Ex Parte Fredrick Manoah Egunza [2012] eKLR thus:
“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.”
[34] For purposes of compliance with Section 21 of the Government Proceedings Act, Order 29 Rule 3 of the Civil Procedure Rules, requires that:
“Any application for a certificate under section 21 of the Government Proceedings Act (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.”
[35] It is also common ground that costs were similarly agreed on and a Certificate of Costs issued. The applicant also exhibited a Certificate of Order and Costs against the Government as an annexure to the Supporting Affidavit to demonstrate compliance with Section 21(1) and (2) of the Government Proceedings Act, which state:
(1) 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 (if 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.
[36] The rationale for this stringent procedure was well captured in Kisya Investments Ltd v Attorney General & Another [2005] 1 KLR 74 thus:
“History and rationale of Government’s immunity from execution arises from the following:- Firstly, there has been a policy in respect of Parliamentary control over revenue and this is threefold and is exercised in respect of (i). The raising of revenue- (by taxation or borrowing); (ii). its expenditure; and (iii). The audit of public accounts. The satisfaction of decrees or judgements is deemed to be an expenditure by Parliament and as a result of this must be justified in law and provided for in the Government’s expenditure. It is for this reason that section 32 of the Government Proceedings Act provides that any expenditure incurred by or on behalf of the Government by reason of this Act shall be defrayed out of the moneys provided by Parliament. Parliamentary control over expenditure is based upon the principle that all expenditure must rest upon legislative authority and no payment out of public funds is legal unless it is authorised by statute, and any unauthorised payment may be recovered. SEE HALSBURY’S LAWS OF ENGALAND 4 TH EDN VOL. 11 PARA 970, 971 AND 1370. As a result of the foregoing, which was borrowed from the Crown Proceedings Act, 1947 (section 37) of England, this is a warning that any payment by Government must be covered by some appropriation. It is said that Parliament is very jealous of its control over the expenditure and this is as it should be. No Ministry or Department has any ready funds at all times to satisfy decrees or judgements. While existence of claims and decrees may be known to the Ministries and Departments, they have to notify the Ministry of Finance and Treasury of the same so that payment is arranged for or provisions made in the Government expenditure. SEE AUCKLAND HARBOUR BOARD VS.R (1924) AC 318, 326. The second situation, which arises from the above, is that once a decree or judgement is obtained against the Government, it would require some reasonable time to have it forwarded to the ministry of Finance, Treasury, Comptroller and Auditor General etc. for scrutiny and approvals for it to be paid from the Consolidated Fund. The Ministries and Departments do not have their “own” funds to settle such decrees or payments and considering the nature of the Government structure, procedures, red tape and large number of claims, this could take a long time. If execution and/or attachment against the Government were allowed, there is no doubt that the Government will not be able to pay immediately upon passing of decrees and judgements and will be inundated with executions and attachments of its assets day in, day out. Its buildings will be attached and its plants and equipment will be attached, its furniture and office equipment will be attached, its vehicles, aircraft, ship and boats will be attached. There will be no end to the list of likely assets to be attached and auctioned by the auctioneer’s hammer. No Government can possibly survive such an onslaught. The Government and therefore the state operations will ground to a halt and paralyzed and soon the Government will not only be bankrupt but it’s Constitutional and Statutory duties will not be capable of performance and this will lead to chaos, anarchy and the breakdown of the Rule of Law. This is the rationale or the objective of the Law that prohibits execution against and attachment of the Government assets and property.” (also see Republic v Permanent Secretary Office of the President Ministry of Internal Security & Another, Ex Parte Nassir Mwandihi, supra)
[37] That the above provisions are equally applicable to County Governments is explicit in Subsection (5). It states:
(5) 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.
[38] There is no doubt that the applicant applied with the foregoing provisions of the law. Indeed, it is common ground that the respondents were duly served with the Certificate of Order and Costs against the Government. As a matter of fact, they honoured the consent judgment and decree by making partial payments to the tune of Kshs. 3,000,000/= in compliance with Section 21(3) which states that:
(3) 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:
[39] It is plain therefore that by dint of Section 21(4) of the Government Proceedings Act attachment and sale of the 4 th respondent’s property was not an option, for that provision is explicit that:
(4) …no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.”
[40] In the case of Republic v the Attorney General & Another, Ex parte James Alfred Keroso [2013] eKLR the point was made that:
“...Unless something is done, he will forever be left babysitting 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 judgments have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgment 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..."
[41] For the reasons aforementioned, I am satisfied that the application dated 6 th November 2024 is meritorious. The same is hereby allowed and orders granted as follows:
[a] That an order of Mandamus be and is hereby issued against the respondents compelling Solomon Obiero , the County Executive Committee Member for Finance of the County Government of Homa Bay to release to the applicant the sum of Kshs. 2,482,210/= being the remaining balance of the decretal sum exclusive of interest in Homa Bay Chief Magistrate’s Civil Case No. 40 of 2018 which sum is being
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