REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E212 OF 2025
IN THE MATTER OF: AN APPLICATION BY KOBBY TECHNOLOGIES LIMITED
(THE EX PARTE APPLICANT) FOR AN ORDER
OF PROHIBITION AND MANDAMUS
PURSUANT TO LEAVE GRANTED ON 7/7/2025 IN
MILIMANI HCJR.E090/2025
AND
IN THE MATTER OF: A DECREE OF THIS HONOURABLE COURT IN
MILIMANI COMMERCIAL
HCCOMMARB/E063/2022 DATED 18/7/2024, AND A CERTIFICATE OF ORDER COSTS AGAINST THE GOVERNMENT DATED 8/4/2025
BETWEEN
KOBBY TECHNOLOGIES LIMITED
VERSUS
KINGSWAY BUSINESS SYSTEMS LIMITED
AND
THE NATIONAL TREASURY, OFFICE OF THE PRINCIPAL
SECRETARY (AS THIRD GARNISHEE)
AND
IN THE MATTER OF:
THE GOVERNMENT PROCEEDINGS ACT, SECTION 23 CAP. NO. 40 LAWS OF KENYA
BETWEEN
REPUBLIC ………………………………………………………... APPLICANT
AND
THE ATTORNEY GENERAL ……………………………...1 ST RESPONDENT
THE NATIONAL TREASURY AND PLANNING, OFFICE
OF THE PRINCIPAL/CABINET SECRETARY………….2 ND RESPONDENT
EX PARTE ……………………………..KOBBY TECHNOLOGIES LIMITED
KINGSWAY BUSINESS SYSTEMS LIMITED ……....INTERESTED PARTY
JUDGMENT
1. This Judgment determines the Notice of motion dated 16 th July 2025 is brought under the provisions of (Order 53 Rule 3, Order 29 Rule 4(2) of the Civil Procedure Rules, 2020, Section 8(2) of the Law Reform Act, CAP. 26, of the Laws of Kenya and all other enabling provisions of the Law.
2. The application was filed pursuant to leave of this Court granted on 7/7/2025 by this Court in HCJR E090 of 2025.
3. The exparte applicant seeks the following substantive orders:
a. THAT this Honourable Court be pleased to issue an order of Prohibition against the 1st Respondent and 2nd Respondent restraining and barring the payment of all monies which are due and owing from the 2nd Respondent to the Interested Party under Tender No. TNT/049/2019 – 2020, the Addendums thereunder and the 4th Addendum dated 14/5/2024 of Tender No. TNT/049/2019-2020 and the said debt be applied towards the settlement of the Garnishee Order Absolute dated 24/2/2025 passed against the 2nd Respondent and the Certificate of Order and Costs Against the Government dated 8th April 2025 as entered in MILIMANI COMMERCIAL HIGH COURT COMMARB/E063/2022 - KOBBY THECHNOLOGIES LIMITED VERSUS KINGSWAY BUSINESS SYSTEMS LIMITED in favour of the ex parte Applicant against the Interested Party.
b. THAT this Honourable Court be please to issue an order of Mandamu s against the 1st Respondent and the 2nd Respondent compelling them to pay to the ex parte Applicant forthwith the decretal sum of Kshs.212,755,850/= in settlement of the Garnishee Order Absolute dated 24/2/2025 which was passed against the 2nd Respondent and the Certificate of Order and Costs against the Government dated 8th April 2025 in MILIMANI COMMERCIAL HIGH COURT COMMARB/E063/2022 KOBBY THECHNOLOGIES LIMITED VERSUS KINGSWAY BUSINESS SYSTEMS LIMITED out of the debt which is due and owing from the 2nd Respondent to the Interested Party (Kingsway Business Systems Limited) under Tender No.TNT/049/2019 – 2020, the Addendums thereunder, and the 4th Addendum dated 14/5/2024 of Tender No.TNT/049/2019-2020.
c. THAT the costs of this Application be awarded to the Ex-parte Applicant.
4. The application is predicated on the grounds and matters set out in the applicant’s Statutory Statement dated 8th April 2025, its supporting documents as annextures and the Verifying Affidavit sworn by Bico Norris Hamala on 8th April 2025 which were all filed on 8th April 2025 accompanying the chamber summons for leave in Milimani HCJR/E090/2025, the Supporting Affidavit, further affidavit and the written submissions filed by the applicant’s counsel. The main grounds forming the basis for the application can be summarized as set out below.
5. The exparte applicant pleads that or about 25/1/2021, the 2nd Respondent awarded Tender No. TNT/049/2019 – 2020 to an Interested Third Party, Inplenion Eastern Africa Limited and the ex parte Applicant herein, for a period of thirty-six months with effect from March 2021 to March 2024 at a consideration of Kshs.647,064,000.00 out of which the ex parte Applicant’s fees was Kshs.303,888,768.00.
6. It is pleaded that the 2nd Respondent is under a contractual duty to pay the Contract sum under Tender No. TNT/049/2019 – 2020 to the parties to the parties to the contract, the ex parte Applicant included.
7. That the Interested Third Party and the ex-parte Applicant entered into a Sub-Contracting Agreement that was founded on Tender No. TNT/049/2019-2020 on 7th March 2021 for a period of thirty-six months.
8. That the Interested Party breached the Sub-contracting agreement between the Interested Third Party and the ex-parte Applicant, as a result of which a dispute arose, which dispute was referred to Arbitration in accordance with the parties Sub – contracting agreement and a Final Arbitration Award was issued on 17/10/2022.
9. Thereafter, that the ex-parte Applicant instituted Milimani Commercial H. C. Commercial ARB/E063/2022 - Kobby Technologies Limited Vs Kingsway Business Systems Limited, seeking recognition and enforcement of the Final Arbitration Award as a decree of the Court, wherein Judgement was entered in favour of the ex Parte Applicant and a decree dated 18/7/2024 for the principal sum of Kshs.165,832,388/=, plus interest at the rate of twelve per cent (12%) per annum with effect from 16/11/2022 until payment in full, plus costs of the suit was issued by the High Court Commercial Division Court. That subsequently, the Party and party costs were taxed on 16/1/2025 at Kshs.237,169.25 cents.
10. It is averred by the exparte applicant that on 7th February 2025, the ex parte Applicant commenced Garnishee proceedings in Milimani Commercial H.C.COMMARB/E063/2022-Kobby Technologies Limited Vs Kingsway Business Systems Limited against the 2nd Respondent inter alia, for the attachment of the debt due from the 2nd Respondent to the Interested third Party under Tender No. TNT/049/2019-2020 and under the 4th Addendum dated 14/5/2023 Tender No. TNT/049/2019-2020, subsequent to which a Garnishee Order Absolute dated 24/2/2025 and a Certificate of Order and Costs Against the Government dated 8th April 2025 for the payment of Kshs.212,755,850/= was issued.
11. The exparte applicant further asserts that in the course of the proceedings in Milimani Commercial H.C.COMMARB/E063/2022 Kobby Technologies Limited Vs Kingsway Business Systems Limited, on or about 23/10/2025, the Interested Third Party filed a Replying Affidavit wherein the deponent, Mr. Kenneth Kadenge, its Business Development Manager unequivocally stated under oath that in respect of Tender No. TNT/049/2019-2020, t the 2nd Respondent was indebted to the Interested Party in the sum of Kshs.91,542,000/= which was due and owing under the said contract and a further sum of Kshs.46,464,500.00 under the 4th Addendum dated 14/5/2023 of Tender No. TNT/049/2019-2020.
12. It is further alleged by the exparte applicant that in a further confirmation that the Interested Third Party was owed by the 2nd Respondent under Tender No.TNT/049/2019-2020, on 26/3/2025, the Interested Third Party allegedly attempted to coerce the ex parte Applicant to override the existing Garnishee Order Absolute of 24/2/2025 and to authorize the 2nd Respondent to release the decretal sum to it. However, that the ex parte Applicant rejected the proposal.
13. Additionally, the exparte applicant avers that the 2nd Respondent was served with the Garnishee Order Absolute dated 24/2/2025 and a demand letter dated 24/2025 to no avail, hence making the filing of these proceedings necessary, after serving Notice of intention to sue upon the 1 st respondent Attorney General on 1 st April, 2025.
14. The exparte applicant asserts that the 2nd Respondent is truly indebted to the Interested Third Party under Tender No. TNT/049/2019-2020, and the 4th Addendum dated 14/5/2023 of Tender No. TNT/049/2019-2020, while the 2nd Respondent is indebted to the ex parte Applicant under the Garnishee Order Absolute dated 24/2/2025 issued in Milimani Commercial H.C. COMM. ARB/E063/2022-Kobby Technologies Limited vs Kingsway Business Systems Limited which debt remains unpaid to date.
15. It is further urged that despite being aware of the Garnishee Order Absolute dated 24/2/2025, the Interested Third Party has taken overt actions to pursue the payments that are due to it from the 2nd Respondent under Tender No. TNT/049/2019-2020 and the 4th Addendum dated 14/5/2023 of Tender No. TNT/049/2019-2020 and that it is paramount that this Court or bar the 2nd Respondent from releasing any payment to the Interested Part until the debt owed under the Garnishee Order Absolute dated 14/5/2025 is settled in full.
16. The exparte applicant further asserts that the 1st and 2nd Respondents are government entities and that therefore the only remedy that is available under the law to the ex parte Applicant is to secure and obtain settlement of the decree dated 18/7/2024 and the Garnishee Order Absolute dated 24/2/2025 from the 1st and 2nd Respondents by the issuance of the prerogative writs of Prohibition and Mandamus by this Court.
Joint Response by the Respondents
17. The Respondents filed grounds of opposition dated 13 th November, 2025 in response to the Notice of motion dated 16 th July, 2025. The Respondents oppose the Notice of Motion on the grounds that the Application is frivolous vexatious and an abuse of court Process; that the Application does not meet the threshold of issuing the order of mandamus sought; and that the Attorney-General is not the accounting officer in National Treasury, relying on Republic v Attorney General Ex parte Miriam Wairimu Wambugu & another [2021] eKLR).
18. Further grounds are that there is no legal/statutory duty against the Attorney-General and /or the 2 nd Respondent; that there is no legal obligation that the 2 nd respondent has refused to perform to warrant issuance of a compelling Order; that the Applicant is enforcing the Judgment against the wrong party and finally, that it is only fair and just that this Application be dismissed with costs to the Respondents.
Response by the Interested Party
19. In response to the exparte applicant’s Notice of Motion dated 16 th July, 2025. the interested party filed a replying affidavit sworn by Kennedy Kadenge, the Business Development Manager of the interested party company and also acting as the Project Representative from Kingsway Business System Limited [interested party] with respect to the sub-contracting agreement dated 7/3/2021, stating that he was familiar with the facts and circumstances leading up to the present judicial review proceedings.
20. Mr. Kadenge deposes, adopting and reiterating the contents of his Replying Affidavit sworn on the 12/5/2025 and the annextures thereto at the leave stage in High Court Judicial Review Case No. E090 of 2025 as well as the contents of the Notice of Motion Application dated 29/7/2025 together with his Supporting Affidavit, in which the interested party sought for Review of the Ruling delivered in HCJR No. E090 of 2025.
21. He further deposed that he wholly reiterated and adopted the contents of the further affidavit sworn on the 8/10/2025 in HCJR E090 of 2025.
22. In response to the further affidavit filed by the exparte applicant, the interested party’s deponent swore a supplementary affidavit reiterating the contents of its Replying Affidavit sworn on the 28/10/2025 in its entirety.
23. In response to paragraph 5 of the Ex-parte Applicant’s Further Affidavit sworn by BICO NORRIS HAMALAH, the interested party stated that the Arbitration Award is the subject matter of High Court Arbitration Case No. 687 of 2022 which seeks to set aside the said Award and is pending before Justice Ado at the Commercial and Tax Division of the High Court.
24. Further in response to paragraph 5 through to paragraph 12 of the Ex-parte Applicant’s Further Affidavit sworn by BICO NORRIS HAMALAH, the interested party asserts that all the issues raised therein are the subject matter of High Court Arbitration Case No. 687 of 2022 which seeks to set aside the Arbitration Award.
25. In response to paragraph 13 of the Ex-parte Applicant’s Further Affidavit sworn by Bico Norris Hamalah, the interested party avers that the Ruling delivered on 18/7/2024 in Milimani Commercial Court – H.C. Arbitration Case No. E063 of 2022 by Justice Mulwa enforcing the Award is the subject matter of Court of Appeal Case No. E573 of 2024 between Kingsway Business Systems Ltd -vs- Kobby Technologies Ltd
26. It was further deposed that the interested party has always held the position that H.C. Case No E687/2022 and High Court Arbitration E063 of 2022 ought to have been consolidated and/or that H. Court Case No E687/2022 which was filed first in time ought to have been dealt with before High Court Arbitration E063 of 2022 to avoid conflicting decisions emanating from the same High Court and that this would have prevented the quagmire we are now in and the numerous matters lodged before the same High Court over the same subject matter.
27. Further deposition is that the Principle of Res Judicata ought to be suspended pending the hearing and determination of High Court Case No. E687 of 2022 which seeks to set aside the award and Civil Appeal Case No. E573 of 2024 which seeks to halt the enforcement of the Award and set it aside pending the hearing and determination of High Court Case No. E687 of 2022.
The Ex Parte Applicant’s Further Affidavit in Response to the Interested Party’s Replying Affidavit Sworn on 28/10/2025
28. Pursuant to leave of court, the exparte applicant filed a further affidavit in response to the interested party’s replying affidavit sworn on 28/10/2025. In the said affidavit sworn by Bico Noriss Hamalah who is the Managing Director of the ex parte Applicant and duly authorized by the Board of directors of the ex parte applicant to swear the Further Affidavit for and on its behalf, he deposes, in reiteration of the contents of the Supporting Affidavit that he swore on 16th July 2025.
29. The deponent asserts that the contents of paragraph Nos 5, 6, and 7 of the Interested Party’s Replying Affidavit sworn on 28/10/2025 and produced as Exhibit ‘KK-1’ on page no. 2 is an attempt to re-litigate issues which were in formerly in contention in the Arbitration leading to the Final award dated 17/10/2022, between the parties and hence, it is not only an abuse of the court process but is also res judicata .
30. Further, that the Interested party alleged in its Replying Affidavit of 28/10/2025, that the Ex parte Applicant recalled its members of staff from the National Treasury on 15/4/2021 which resulted in non-performance of the latter’s obligations under the Sub-Contracting Agreement dated 7/3/2021, and failure to take any remedial steps, which caused the interested party to hire the required consultants to perform the work.
31. It is deposed that during the Arbitration, the Interested Party herein filed a defence and Counterclaim dated 8/4/2021 where it claimed in paragraph Nos 9, 10, 11, 12, 13, 14 15,16, 19, 20, and 21 that the Ex Parte Applicant had breached the Sub-Contracting Agreement dated 7/3/2021 through withdrawal of the latter’s members of staff from IFMIS, as shown by annexed copy the defence and Counterclaim marked as Exhibit BNH –5.
32. Further deposition is that the Ex parte Applicant strongly and successfully rebutted the accusations of non-performance of its obligations or any breach of the Sub-contracting Agreement dated 7/3/2021 through its annexed pleadings marked as Exhibit BNH-6 namely: the claimant’s supplementary witness statement filed pursuant to leave granted on 15/8/2022” dated 16/8/2021 and Reply to defence and defence to Counterclaim dated 12/8/2021.
33. That contrary to the Interested Party’s averment that no remedial measures were taken to redeploy the members of staff who were withdrawn on 16/4/2021, the applicant attached the Claimant’s List of documents dated 12/8/2022 marked as Exhibit ‘BNH-7’, which the Ex parte Applicant filed in the Arbitration Referencee, and drew this court’s attention to an email dated Thursday 22nd April 2021 09:24 at page no.26, 27, 28 where the deponent wrote as follows: “ RE: KBS INVOICE
Kadenge,
Decision to redeploy was done yesterday. Please give us update on the pending invoice payment. I hope we are still on track to having it made this week.
Regards,
BICO NORISS HAMALAH
Managing Director”
34. The exparte applicant’s deponent further asserts that Mr. Kenneth Kadenge of the Interested Party confirmed that the issue of withdrawal of the Ex parte Applicant’s members of staff was resolved through his email: Kenneth.kadenge@kingsway.co.ke on 29th April 2021 11:02 when he wrote as follows:
“RE: KBS invoice
Dear Bico
Well received.
As per tel. conversation this morning, I would like to assure you that matters salary for the staff in respect of the IFMIS project is being worked on and will update you accordingly when the same is effected.
Thanks”
35. Further, that in paragraph No.10 of the Ex parte Applicant’s Reply to defence dated 12/8/2021, it was pleaded; “ However, even without any payment being made by the Respondent, the Claimant redeployed the withdrawn personnel on 22/4/2021 and has continued to maintain its personnel on site to date.”
36. It was deponed that according to the Amended Final Arbitration Award dated 17/10/2021 at page No. 22, paginated no. 73, 74, 83, 84, 85, 86 and 87, the Arbitrator heard the Interested Party’s Defence and Counterclaim and held with regard to the claim for breach of contract by the Ex parte Applicant on page No. 22, paginated as 116 the Arbitrator held as follows: “21.3.2. I therefore DECIDE and DETERMINE on the evidence before me that in so far as issue No. 3 is concerned that the Respondent is not entitled to its counterclaim against the Clamant AND my decision thereon is final.”
37. That in view of issuance of orders for the recognition and enforcement of the Final Arbitration Award dated 17/10/2021 as a judgment of the court vide the Ruling delivered on 18/7/2024 in Milimani Commercial Court - H.CCOMARB. /E063/2022 Kobby Technologies Limited Versus Kingsway Business Systems Limited, the principle of Res Judicata stripes this court of jurisdiction to revisit matters that were previously conclusively heard and determined by a court of competent and concurrent jurisdiction.
38. Further, that paragraphs 18, 19, 20 of the Replying Affidavit confirm that the issue of whether H.C.COMMMISC.E687/2022 ought to have been heard together with H.C.ARB./E063/2022 Kobby Technologies Limited Versus Kingsway Business Systems Limited, was raised before Justice Mr. P. Mulwa, who according to the court proceedings which form part of Ex parte Applicant’s exhibits on page no. 185 – 186 (page 2/3 & 3/3), parties submitted on this issue and the court proceeded to issue a Ruling date for the cause that was before it.
39. That after the Court fixed the Ruling date of 18/7/2024 in HCCOMM ARB./E063/2022, the Interested party did not challenge the court’s order or refusal for the two matters to be heard together, but instead it proceeded to file the application for reconstruction of the court file in H.C.COMMMISC.E687/2022 on 22/4/2024, as shown by its Exhibit KK-1 on pages 34 – 41.
40. Regarding the Interested Party’s Exhibit KK-1 on pages 83 – 85 of the Replying Affidavit of Samson Wangusi sworn on 23/6/2025 in H.C.ARB./E063/2022, which the Interested party has resorted to, to substantiate allegations of non-performance of the Sub-Contracting Agreement dated 7/3/2021 and that the sums due under the contract are not payable, the applicant asserts that despite alleging that the payments under the tender Contract were only payable on completion of the agreed milestones and accusing the Contracting parties of non-performance of contractual obligations, Mr. Samson Wangusi’s produced Exhibit “SW-2” which is the “CONTRACT AGREEMENT between THE NATIONAL TREASURY and M/S KINGSWAY BUSINESS SYSTEMS LIMITED (Lead Bidder) IN CONSORTIUM WITH M/S KOBBY TECHNOLOGIES LIMITED AND M/S INPLENION EASTERN AFRICA LIMITED dated 9/2/2021, but failed to produced a “WRITTEN NOTICE OF DEFAULT” or a Notice for termination for breach as expressly provided in Clause 3.7.3. page 93 and Clause 3.11 at pages 93 -94] which provides as follows:-
SECTION III GENERAL CONDITIONS OF CONTRACT [p.91]
3.7 Inspection and Tests
3.7.3. “Should any inspected or tested services fail to conform to the Specifications, the Procuring Entity may reject the services, and the tenderer shall either replace the rejected services or make alterations necessary to meet specification requirements free of costs to the procuring entity.
3.11. “Termination for breach
The procuring entity may, without prejudice to any other remedy for breach of Contract, by written notice of default sent to the tenderer terminate, this Contract in whole or in part.”
a) If the tenderer fails to provide any or all of the services within the period(s) specified in the Contract, or within an extension thereof granted by the Procuring entity.
b) If the tenderer fails to perform any other obligation(s) under the Contract.
c) If the tenderer, in the Judgment of the Procuring entity has engaged in corrupt of fraudulent practices in competing for or in executing the Contract.
In the event the Procuring Entity terminates the Contract in whole or in part, it may procure, upon such terms and in such manner as it deems appropriate, services similar to those undelivered, and the tenderer shall be liable to the procuring entity for any excess costs for such similar services.”
41. The applicant denies the allegations of non-performance and breach as alleged in the Replying affidavit of Mr. Samson Wangusi and asserts that the allegations of breach of contract by Mr. Samson Wangusi in the absence of independent supporting evidence of compliance with Clause 3.7 and 3.11 by the National Treasury, are mala fides , scandalous and mischievous to say the least.
42. Further, that the duration of the Contract was 3 years with effect from 9/2/2021 to 8/2/2024 and that the said Contract expired through effluxion of time and not through termination, which, according to the exparte applicant, further compounds the absurdity of Mr. Samson Wangusi’s claims of non-performance.
43. The exparte applicant further denies allegations at paragraph 15 of the Replying Affidavit of Mr Samson Wangusi, that another Contractor was engaged to complete the works under the tender contract.
44. Concerning Mr. Samson Wangusi’s exhibit SW-3, the exparte applicant asserts that the contracted works thereunder are fundamentally different in all material particulars from the works covered by the contract of 7/3/2021. That the Contract of 7/3/2021 was for “ Provision of Onsite Support For IFMIS applications, enhancement of IFMIS E-Procurement and independent Integrated Financial Management Information System For Semi-Autonomous Government Agency (SAGA): Lot 1: Provision of Onsite Support For IFMIS Applications and Enhancement of IFMIS E-Procurement; whil e ‘ SW-3’ defines the contracted services as “ Provision of Onsite Support for IFMIS Applications, Enhancement of Oracle Hyperion Budgeting and Planning Module for National and County Treasuries.”
45. Additionally, that Clauses 4.2 at page 106 and 4.3 – 4.5 of Contract; TNT/049/2019-2020 outlined the objectives and scope of the contracted works.
46. Further, that Clause 4.6 “Duration of the Assignment” provided that: “The duration of this assignment shall be Twelve (12No.) months on development, go live, and stabilization. Support shall be 24 months (2No.) years in line with support for existing applications.
47. According to the exparte applicant, all due process and rules of natural justice were adhered to in all proceedings leading up to the issuance of; the Amended Final Award dated 17/10/2022; the decree dated 18/7/2024; the Garnishee Order Absolute dated 24/2/2025 and the Certificate of Order and costs against Government dated 8/4/2025.
48. It maintains that the the only legal means available to the ex parte Applicant to obtain compliance by the Respondents with lawful orders of this Court is by grant of the prerogative remedies of prohibition and mandamus, which the deponent implores this Court to grant.
The exparte applicant’s submissions
49. The exparte applicant also filed written submissions providing the procedural history of this matter from the time that leave to apply was sought and obtained vide Milimani HCJR.E090/2025, on 7/7/2025, to date, highlighting directions given by this court. On the Interested party’s replying affidavit sworn on 28/10/2025, which however was not traceable on the Judiciary E-filing portal for this matter as of 5th November 2025, nor was there record of a payment for it on the CTS, it was submitted that the Judiciary Court Fees Assessment Schedule in the First Schedule Section D, “High Court (Commercial and Tax Cases) at paragraph No. 6 on page No. 7, prescribes a court filing fees of Kshs.750/- for filing of an Affidavit or grounds of opposition. That the ‘The Judiciary Court Fees Assessment Schedule’ was published in the Kenya Gazette Notice Vol. CXXIII-No. 144, of 9th July 2021, Gazette Notice No. 6830 and became effective on 1st July 2021, with the its preamble expressly stating in mandatory terms as follows: “IT IS HEREBY NOTIFIED for the general information of the public fees set out in the schedule hereto shall apply to the lodging or filing of the respective documents in the relevant proceedings before specified Courts and Tribunals.
50. This Court was therefore invited to draw guidance from the decision in the case of; Parkesh Kamlakar Naik & Another Versus Cabinet Secretary Ministry of Interior and Co-Ordination Of National Governments And 2 Others [2017] eKLR, at paragraph 10, where the court held as follows with respect to failure pay court filing fees:
“Failure to pay court filing fees is not a procedural technicality as it goes to the substance of the main pleading which cannot be deemed to be filed without court filing fees being paid and an acknowledgment receipt issued to that effect unless exempted by law or by the court on application.”
51. And that at paragraph No. 21 of the above decision, the court held that: “This court cannot be complicit in such misdeeds. In the premises, I have no option but to declare the notice of motion dated 11th July 2016 and filed in court on 12th July 2016 incompetently filed. I proceed and strike it out.”
52. It was therefore submitted that in the absence of a properly filed Replying Affidavit and the failure by the Respondents to file a response to the application within the stipulated time or by the time these submissions were prepared, this Court should to allow the exparte applicant’s application as an opposed in accordance with the provisions of Order 51 Rule 14(4 of the Civil procedure Rules.
53. The exparte applicant’s counsel further provides a history of the dispute culminating in the HCCOMMARB/E063/2022 DATED 18/7/2024, AND A CERTIFICATE OF ORDER COSTS AGAINST THE GOVERNMENT DATED 8/4/2024 arising from Tender Contract No. TNT/049/2019-2020 to Inplenion Eastern Africa Limited, the Interested Party and the ex parte Applicant for the consideration of Kshs.647,064,000.00 pursuant to which the ex parte Applicant and the Interested Party entered into a Sub-Contracting Agreement on 7/3/2021 for the performance of a tender contract; TNT/049/2019-2020 wherein it was expressly agreed that the ex parte Applicant professional fees was Kshs.303,888,768/= to be paid out of the contract sum of the mother contract. Due to a breach of contract by the Interested Party, a dispute arose from the Sub-contracting Agreement and was referred to Arbitration and an Arbitration Award was published on 17th October 2022 -pages 51 – 136; and how the Decree order absolute was arrived at by the Commercial Division of the High Court., which documents were affectively served upon the respondents herein for compliance as required under section 21 of the Government Proceedings Act and only after the 2 nd respondent failed to com ply that the exparte applicant filed which led to the filing of Garnishee proceedings on 7/2/2025 and these judicial review proceedings.
54. It was submitted that in any event, only the 1 st respondent opposed the application for leave to apply in MILIMANI HCJR/E090/2025 being an application for leave to apply for an Order of Prohibition and Mandamus against the 1st and 2nd Respondent, in which this Court observed at paragraph 12 of the ruling that there was no challenge of the existence of valid court orders that are yet to be satisfied and as to whether there is an appeal or application for setting aside or not, this court had not been shown any order of stay of the orders adopting the final award.
55. The exparte applicant submitted that n the alternative and without prejudice to the position taken with regard to the Interested Party’s unfilled Replying Affidavit, in the unlikely event that this Court is inclined to consider the same, that the said replying affidavit raises the issue of non-performance of the sub-contracting agreement by recall of staff members, which the ex parte Applicant has demonstrated through the Further Affidavit of 5/11/2025 and documentary evidence marked as Exhibit ‘BNH-7 not to be true as members of staff were redeployed within 6 days after recall. Secondly, that the issue of recall of staff members is an attempt to relitigate matters th
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IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E212 OF 2025
IN THE MATTER OF: AN APPLICATION BY KOBBY TECHNOLOGIES LIMITED
(THE EX PARTE APPLICANT) FOR AN ORDER
OF PROHIBITION AND MANDAMUS
PURSUANT TO LEAVE GRANTED ON 7/7/2025 IN
MILIMANI HCJR.E090/2025
AND
IN THE MATTER OF: A DECREE OF THIS HONOURABLE COURT IN
MILIMANI COMMERCIAL
HCCOMMARB/E063/2022 DATED 18/7/2024, AND A CERTIFICATE OF ORDER COSTS AGAINST THE GOVERNMENT DATED 8/4/2025
BETWEEN
KOBBY TECHNOLOGIES LIMITED
VERSUS
KINGSWAY BUSINESS SYSTEMS LIMITED
AND
THE NATIONAL TREASURY, OFFICE OF THE PRINCIPAL
SECRETARY (AS THIRD GARNISHEE)
AND
IN THE MATTER OF:
THE GOVERNMENT PROCEEDINGS ACT, SECTION 23 CAP. NO. 40 LAWS OF KENYA
BETWEEN
REPUBLIC ………………………………………………………... APPLICANT
AND
THE ATTORNEY GENERAL ……………………………...1 ST RESPONDENT
THE NATIONAL TREASURY AND PLANNING, OFFICE
OF THE PRINCIPAL/CABINET SECRETARY………….2 ND RESPONDENT
EX PARTE ……………………………..KOBBY TECHNOLOGIES LIMITED
KINGSWAY BUSINESS SYSTEMS LIMITED ……....INTERESTED PARTY
JUDGMENT
1. This Judgment determines the Notice of motion dated 16 th July 2025 is brought under the provisions of (Order 53 Rule 3, Order 29 Rule 4(2) of the Civil Procedure Rules, 2020, Section 8(2) of the Law Reform Act, CAP. 26, of the Laws of Kenya and all other enabling provisions of the Law.
2. The application was filed pursuant to leave of this Court granted on 7/7/2025 by this Court in HCJR E090 of 2025.
3. The exparte applicant seeks the following substantive orders:
a. THAT this Honourable Court be pleased to issue an order of Prohibition against the 1st Respondent and 2nd Respondent restraining and barring the payment of all monies which are due and owing from the 2nd Respondent to the Interested Party under Tender No. TNT/049/2019 – 2020, the Addendums thereunder and the 4th Addendum dated 14/5/2024 of Tender No. TNT/049/2019-2020 and the said debt be applied towards the settlement of the Garnishee Order Absolute dated 24/2/2025 passed against the 2nd Respondent and the Certificate of Order and Costs Against the Government dated 8th April 2025 as entered in MILIMANI COMMERCIAL HIGH COURT COMMARB/E063/2022 - KOBBY THECHNOLOGIES LIMITED VERSUS KINGSWAY BUSINESS SYSTEMS LIMITED in favour of the ex parte Applicant against the Interested Party.
b. THAT this Honourable Court be please to issue an order of Mandamu s against the 1st Respondent and the 2nd Respondent compelling them to pay to the ex parte Applicant forthwith the decretal sum of Kshs.212,755,850/= in settlement of the Garnishee Order Absolute dated 24/2/2025 which was passed against the 2nd Respondent and the Certificate of Order and Costs against the Government dated 8th April 2025 in MILIMANI COMMERCIAL HIGH COURT COMMARB/E063/2022 KOBBY THECHNOLOGIES LIMITED VERSUS KINGSWAY BUSINESS SYSTEMS LIMITED out of the debt which is due and owing from the 2nd Respondent to the Interested Party (Kingsway Business Systems Limited) under Tender No.TNT/049/2019 – 2020, the Addendums thereunder, and the 4th Addendum dated 14/5/2024 of Tender No.TNT/049/2019-2020.
c. THAT the costs of this Application be awarded to the Ex-parte Applicant.
4. The application is predicated on the grounds and matters set out in the applicant’s Statutory Statement dated 8th April 2025, its supporting documents as annextures and the Verifying Affidavit sworn by Bico Norris Hamala on 8th April 2025 which were all filed on 8th April 2025 accompanying the chamber summons for leave in Milimani HCJR/E090/2025, the Supporting Affidavit, further affidavit and the written submissions filed by the applicant’s counsel. The main grounds forming the basis for the application can be summarized as set out below.
5. The exparte applicant pleads that or about 25/1/2021, the 2nd Respondent awarded Tender No. TNT/049/2019 – 2020 to an Interested Third Party, Inplenion Eastern Africa Limited and the ex parte Applicant herein, for a period of thirty-six months with effect from March 2021 to March 2024 at a consideration of Kshs.647,064,000.00 out of which the ex parte Applicant’s fees was Kshs.303,888,768.00.
6. It is pleaded that the 2nd Respondent is under a contractual duty to pay the Contract sum under Tender No. TNT/049/2019 – 2020 to the parties to the parties to the contract, the ex parte Applicant included.
7. That the Interested Third Party and the ex-parte Applicant entered into a Sub-Contracting Agreement that was founded on Tender No. TNT/049/2019-2020 on 7th March 2021 for a period of thirty-six months.
8. That the Interested Party breached the Sub-contracting agreement between the Interested Third Party and the ex-parte Applicant, as a result of which a dispute arose, which dispute was referred to Arbitration in accordance with the parties Sub – contracting agreement and a Final Arbitration Award was issued on 17/10/2022.
9. Thereafter, that the ex-parte Applicant instituted Milimani Commercial H. C. Commercial ARB/E063/2022 - Kobby Technologies Limited Vs Kingsway Business Systems Limited, seeking recognition and enforcement of the Final Arbitration Award as a decree of the Court, wherein Judgement was entered in favour of the ex Parte Applicant and a decree dated 18/7/2024 for the principal sum of Kshs.165,832,388/=, plus interest at the rate of twelve per cent (12%) per annum with effect from 16/11/2022 until payment in full, plus costs of the suit was issued by the High Court Commercial Division Court. That subsequently, the Party and party costs were taxed on 16/1/2025 at Kshs.237,169.25 cents.
10. It is averred by the exparte applicant that on 7th February 2025, the ex parte Applicant commenced Garnishee proceedings in Milimani Commercial H.C.COMMARB/E063/2022-Kobby Technologies Limited Vs Kingsway Business Systems Limited against the 2nd Respondent inter alia, for the attachment of the debt due from the 2nd Respondent to the Interested third Party under Tender No. TNT/049/2019-2020 and under the 4th Addendum dated 14/5/2023 Tender No. TNT/049/2019-2020, subsequent to which a Garnishee Order Absolute dated 24/2/2025 and a Certificate of Order and Costs Against the Government dated 8th April 2025 for the payment of Kshs.212,755,850/= was issued.
11. The exparte applicant further asserts that in the course of the proceedings in Milimani Commercial H.C.COMMARB/E063/2022 Kobby Technologies Limited Vs Kingsway Business Systems Limited, on or about 23/10/2025, the Interested Third Party filed a Replying Affidavit wherein the deponent, Mr. Kenneth Kadenge, its Business Development Manager unequivocally stated under oath that in respect of Tender No. TNT/049/2019-2020, t the 2nd Respondent was indebted to the Interested Party in the sum of Kshs.91,542,000/= which was due and owing under the said contract and a further sum of Kshs.46,464,500.00 under the 4th Addendum dated 14/5/2023 of Tender No. TNT/049/2019-2020.
12. It is further alleged by the exparte applicant that in a further confirmation that the Interested Third Party was owed by the 2nd Respondent under Tender No.TNT/049/2019-2020, on 26/3/2025, the Interested Third Party allegedly attempted to coerce the ex parte Applicant to override the existing Garnishee Order Absolute of 24/2/2025 and to authorize the 2nd Respondent to release the decretal sum to it. However, that the ex parte Applicant rejected the proposal.
13. Additionally, the exparte applicant avers that the 2nd Respondent was served with the Garnishee Order Absolute dated 24/2/2025 and a demand letter dated 24/2025 to no avail, hence making the filing of these proceedings necessary, after serving Notice of intention to sue upon the 1 st respondent Attorney General on 1 st April, 2025.
14. The exparte applicant asserts that the 2nd Respondent is truly indebted to the Interested Third Party under Tender No. TNT/049/2019-2020, and the 4th Addendum dated 14/5/2023 of Tender No. TNT/049/2019-2020, while the 2nd Respondent is indebted to the ex parte Applicant under the Garnishee Order Absolute dated 24/2/2025 issued in Milimani Commercial H.C. COMM. ARB/E063/2022-Kobby Technologies Limited vs Kingsway Business Systems Limited which debt remains unpaid to date.
15. It is further urged that despite being aware of the Garnishee Order Absolute dated 24/2/2025, the Interested Third Party has taken overt actions to pursue the payments that are due to it from the 2nd Respondent under Tender No. TNT/049/2019-2020 and the 4th Addendum dated 14/5/2023 of Tender No. TNT/049/2019-2020 and that it is paramount that this Court or bar the 2nd Respondent from releasing any payment to the Interested Part until the debt owed under the Garnishee Order Absolute dated 14/5/2025 is settled in full.
16. The exparte applicant further asserts that the 1st and 2nd Respondents are government entities and that therefore the only remedy that is available under the law to the ex parte Applicant is to secure and obtain settlement of the decree dated 18/7/2024 and the Garnishee Order Absolute dated 24/2/2025 from the 1st and 2nd Respondents by the issuance of the prerogative writs of Prohibition and Mandamus by this Court.
Joint Response by the Respondents
17. The Respondents filed grounds of opposition dated 13 th November, 2025 in response to the Notice of motion dated 16 th July, 2025. The Respondents oppose the Notice of Motion on the grounds that the Application is frivolous vexatious and an abuse of court Process; that the Application does not meet the threshold of issuing the order of mandamus sought; and that the Attorney-General is not the accounting officer in National Treasury, relying on Republic v Attorney General Ex parte Miriam Wairimu Wambugu & another [2021] eKLR).
18. Further grounds are that there is no legal/statutory duty against the Attorney-General and /or the 2 nd Respondent; that there is no legal obligation that the 2 nd respondent has refused to perform to warrant issuance of a compelling Order; that the Applicant is enforcing the Judgment against the wrong party and finally, that it is only fair and just that this Application be dismissed with costs to the Respondents.
Response by the Interested Party
19. In response to the exparte applicant’s Notice of Motion dated 16 th July, 2025. the interested party filed a replying affidavit sworn by Kennedy Kadenge, the Business Development Manager of the interested party company and also acting as the Project Representative from Kingsway Business System Limited [interested party] with respect to the sub-contracting agreement dated 7/3/2021, stating that he was familiar with the facts and circumstances leading up to the present judicial review proceedings.
20. Mr. Kadenge deposes, adopting and reiterating the contents of his Replying Affidavit sworn on the 12/5/2025 and the annextures thereto at the leave stage in High Court Judicial Review Case No. E090 of 2025 as well as the contents of the Notice of Motion Application dated 29/7/2025 together with his Supporting Affidavit, in which the interested party sought for Review of the Ruling delivered in HCJR No. E090 of 2025.
21. He further deposed that he wholly reiterated and adopted the contents of the further affidavit sworn on the 8/10/2025 in HCJR E090 of 2025.
22. In response to the further affidavit filed by the exparte applicant, the interested party’s deponent swore a supplementary affidavit reiterating the contents of its Replying Affidavit sworn on the 28/10/2025 in its entirety.
23. In response to paragraph 5 of the Ex-parte Applicant’s Further Affidavit sworn by BICO NORRIS HAMALAH, the interested party stated that the Arbitration Award is the subject matter of High Court Arbitration Case No. 687 of 2022 which seeks to set aside the said Award and is pending before Justice Ado at the Commercial and Tax Division of the High Court.
24. Further in response to paragraph 5 through to paragraph 12 of the Ex-parte Applicant’s Further Affidavit sworn by BICO NORRIS HAMALAH, the interested party asserts that all the issues raised therein are the subject matter of High Court Arbitration Case No. 687 of 2022 which seeks to set aside the Arbitration Award.
25. In response to paragraph 13 of the Ex-parte Applicant’s Further Affidavit sworn by Bico Norris Hamalah, the interested party avers that the Ruling delivered on 18/7/2024 in Milimani Commercial Court – H.C. Arbitration Case No. E063 of 2022 by Justice Mulwa enforcing the Award is the subject matter of Court of Appeal Case No. E573 of 2024 between Kingsway Business Systems Ltd -vs- Kobby Technologies Ltd
26. It was further deposed that the interested party has always held the position that H.C. Case No E687/2022 and High Court Arbitration E063 of 2022 ought to have been consolidated and/or that H. Court Case No E687/2022 which was filed first in time ought to have been dealt with before High Court Arbitration E063 of 2022 to avoid conflicting decisions emanating from the same High Court and that this would have prevented the quagmire we are now in and the numerous matters lodged before the same High Court over the same subject matter.
27. Further deposition is that the Principle of Res Judicata ought to be suspended pending the hearing and determination of High Court Case No. E687 of 2022 which seeks to set aside the award and Civil Appeal Case No. E573 of 2024 which seeks to halt the enforcement of the Award and set it aside pending the hearing and determination of High Court Case No. E687 of 2022.
The Ex Parte Applicant’s Further Affidavit in Response to the Interested Party’s Replying Affidavit Sworn on 28/10/2025
28. Pursuant to leave of court, the exparte applicant filed a further affidavit in response to the interested party’s replying affidavit sworn on 28/10/2025. In the said affidavit sworn by Bico Noriss Hamalah who is the Managing Director of the ex parte Applicant and duly authorized by the Board of directors of the ex parte applicant to swear the Further Affidavit for and on its behalf, he deposes, in reiteration of the contents of the Supporting Affidavit that he swore on 16th July 2025.
29. The deponent asserts that the contents of paragraph Nos 5, 6, and 7 of the Interested Party’s Replying Affidavit sworn on 28/10/2025 and produced as Exhibit ‘KK-1’ on page no. 2 is an attempt to re-litigate issues which were in formerly in contention in the Arbitration leading to the Final award dated 17/10/2022, between the parties and hence, it is not only an abuse of the court process but is also res judicata .
30. Further, that the Interested party alleged in its Replying Affidavit of 28/10/2025, that the Ex parte Applicant recalled its members of staff from the National Treasury on 15/4/2021 which resulted in non-performance of the latter’s obligations under the Sub-Contracting Agreement dated 7/3/2021, and failure to take any remedial steps, which caused the interested party to hire the required consultants to perform the work.
31. It is deposed that during the Arbitration, the Interested Party herein filed a defence and Counterclaim dated 8/4/2021 where it claimed in paragraph Nos 9, 10, 11, 12, 13, 14 15,16, 19, 20, and 21 that the Ex Parte Applicant had breached the Sub-Contracting Agreement dated 7/3/2021 through withdrawal of the latter’s members of staff from IFMIS, as shown by annexed copy the defence and Counterclaim marked as Exhibit BNH –5.
32. Further deposition is that the Ex parte Applicant strongly and successfully rebutted the accusations of non-performance of its obligations or any breach of the Sub-contracting Agreement dated 7/3/2021 through its annexed pleadings marked as Exhibit BNH-6 namely: the claimant’s supplementary witness statement filed pursuant to leave granted on 15/8/2022” dated 16/8/2021 and Reply to defence and defence to Counterclaim dated 12/8/2021.
33. That contrary to the Interested Party’s averment that no remedial measures were taken to redeploy the members of staff who were withdrawn on 16/4/2021, the applicant attached the Claimant’s List of documents dated 12/8/2022 marked as Exhibit ‘BNH-7’, which the Ex parte Applicant filed in the Arbitration Referencee, and drew this court’s attention to an email dated Thursday 22nd April 2021 09:24 at page no.26, 27, 28 where the deponent wrote as follows: “ RE: KBS INVOICE
Kadenge,
Decision to redeploy was done yesterday. Please give us update on the pending invoice payment. I hope we are still on track to having it made this week.
Regards,
BICO NORISS HAMALAH
Managing Director”
34. The exparte applicant’s deponent further asserts that Mr. Kenneth Kadenge of the Interested Party confirmed that the issue of withdrawal of the Ex parte Applicant’s members of staff was resolved through his email: Kenneth.kadenge@kingsway.co.ke on 29th April 2021 11:02 when he wrote as follows:
“RE: KBS invoice
Dear Bico
Well received.
As per tel. conversation this morning, I would like to assure you that matters salary for the staff in respect of the IFMIS project is being worked on and will update you accordingly when the same is effected.
Thanks”
35. Further, that in paragraph No.10 of the Ex parte Applicant’s Reply to defence dated 12/8/2021, it was pleaded; “ However, even without any payment being made by the Respondent, the Claimant redeployed the withdrawn personnel on 22/4/2021 and has continued to maintain its personnel on site to date.”
36. It was deponed that according to the Amended Final Arbitration Award dated 17/10/2021 at page No. 22, paginated no. 73, 74, 83, 84, 85, 86 and 87, the Arbitrator heard the Interested Party’s Defence and Counterclaim and held with regard to the claim for breach of contract by the Ex parte Applicant on page No. 22, paginated as 116 the Arbitrator held as follows: “21.3.2. I therefore DECIDE and DETERMINE on the evidence before me that in so far as issue No. 3 is concerned that the Respondent is not entitled to its counterclaim against the Clamant AND my decision thereon is final.”
37. That in view of issuance of orders for the recognition and enforcement of the Final Arbitration Award dated 17/10/2021 as a judgment of the court vide the Ruling delivered on 18/7/2024 in Milimani Commercial Court - H.CCOMARB. /E063/2022 Kobby Technologies Limited Versus Kingsway Business Systems Limited, the principle of Res Judicata stripes this court of jurisdiction to revisit matters that were previously conclusively heard and determined by a court of competent and concurrent jurisdiction.
38. Further, that paragraphs 18, 19, 20 of the Replying Affidavit confirm that the issue of whether H.C.COMMMISC.E687/2022 ought to have been heard together with H.C.ARB./E063/2022 Kobby Technologies Limited Versus Kingsway Business Systems Limited, was raised before Justice Mr. P. Mulwa, who according to the court proceedings which form part of Ex parte Applicant’s exhibits on page no. 185 – 186 (page 2/3 & 3/3), parties submitted on this issue and the court proceeded to issue a Ruling date for the cause that was before it.
39. That after the Court fixed the Ruling date of 18/7/2024 in HCCOMM ARB./E063/2022, the Interested party did not challenge the court’s order or refusal for the two matters to be heard together, but instead it proceeded to file the application for reconstruction of the court file in H.C.COMMMISC.E687/2022 on 22/4/2024, as shown by its Exhibit KK-1 on pages 34 – 41.
40. Regarding the Interested Party’s Exhibit KK-1 on pages 83 – 85 of the Replying Affidavit of Samson Wangusi sworn on 23/6/2025 in H.C.ARB./E063/2022, which the Interested party has resorted to, to substantiate allegations of non-performance of the Sub-Contracting Agreement dated 7/3/2021 and that the sums due under the contract are not payable, the applicant asserts that despite alleging that the payments under the tender Contract were only payable on completion of the agreed milestones and accusing the Contracting parties of non-performance of contractual obligations, Mr. Samson Wangusi’s produced Exhibit “SW-2” which is the “CONTRACT AGREEMENT between THE NATIONAL TREASURY and M/S KINGSWAY BUSINESS SYSTEMS LIMITED (Lead Bidder) IN CONSORTIUM WITH M/S KOBBY TECHNOLOGIES LIMITED AND M/S INPLENION EASTERN AFRICA LIMITED dated 9/2/2021, but failed to produced a “WRITTEN NOTICE OF DEFAULT” or a Notice for termination for breach as expressly provided in Clause 3.7.3. page 93 and Clause 3.11 at pages 93 -94] which provides as follows:-
SECTION III GENERAL CONDITIONS OF CONTRACT [p.91]
3.7 Inspection and Tests
3.7.3. “Should any inspected or tested services fail to conform to the Specifications, the Procuring Entity may reject the services, and the tenderer shall either replace the rejected services or make alterations necessary to meet specification requirements free of costs to the procuring entity.
3.11. “Termination for breach
The procuring entity may, without prejudice to any other remedy for breach of Contract, by written notice of default sent to the tenderer terminate, this Contract in whole or in part.”
a) If the tenderer fails to provide any or all of the services within the period(s) specified in the Contract, or within an extension thereof granted by the Procuring entity.
b) If the tenderer fails to perform any other obligation(s) under the Contract.
c) If the tenderer, in the Judgment of the Procuring entity has engaged in corrupt of fraudulent practices in competing for or in executing the Contract.
In the event the Procuring Entity terminates the Contract in whole or in part, it may procure, upon such terms and in such manner as it deems appropriate, services similar to those undelivered, and the tenderer shall be liable to the procuring entity for any excess costs for such similar services.”
41. The applicant denies the allegations of non-performance and breach as alleged in the Replying affidavit of Mr. Samson Wangusi and asserts that the allegations of breach of contract by Mr. Samson Wangusi in the absence of independent supporting evidence of compliance with Clause 3.7 and 3.11 by the National Treasury, are mala fides , scandalous and mischievous to say the least.
42. Further, that the duration of the Contract was 3 years with effect from 9/2/2021 to 8/2/2024 and that the said Contract expired through effluxion of time and not through termination, which, according to the exparte applicant, further compounds the absurdity of Mr. Samson Wangusi’s claims of non-performance.
43. The exparte applicant further denies allegations at paragraph 15 of the Replying Affidavit of Mr Samson Wangusi, that another Contractor was engaged to complete the works under the tender contract.
44. Concerning Mr. Samson Wangusi’s exhibit SW-3, the exparte applicant asserts that the contracted works thereunder are fundamentally different in all material particulars from the works covered by the contract of 7/3/2021. That the Contract of 7/3/2021 was for “ Provision of Onsite Support For IFMIS applications, enhancement of IFMIS E-Procurement and independent Integrated Financial Management Information System For Semi-Autonomous Government Agency (SAGA): Lot 1: Provision of Onsite Support For IFMIS Applications and Enhancement of IFMIS E-Procurement; whil e ‘ SW-3’ defines the contracted services as “ Provision of Onsite Support for IFMIS Applications, Enhancement of Oracle Hyperion Budgeting and Planning Module for National and County Treasuries.”
45. Additionally, that Clauses 4.2 at page 106 and 4.3 – 4.5 of Contract; TNT/049/2019-2020 outlined the objectives and scope of the contracted works.
46. Further, that Clause 4.6 “Duration of the Assignment” provided that: “The duration of this assignment shall be Twelve (12No.) months on development, go live, and stabilization. Support shall be 24 months (2No.) years in line with support for existing applications.
47. According to the exparte applicant, all due process and rules of natural justice were adhered to in all proceedings leading up to the issuance of; the Amended Final Award dated 17/10/2022; the decree dated 18/7/2024; the Garnishee Order Absolute dated 24/2/2025 and the Certificate of Order and costs against Government dated 8/4/2025.
48. It maintains that the the only legal means available to the ex parte Applicant to obtain compliance by the Respondents with lawful orders of this Court is by grant of the prerogative remedies of prohibition and mandamus, which the deponent implores this Court to grant.
The exparte applicant’s submissions
49. The exparte applicant also filed written submissions providing the procedural history of this matter from the time that leave to apply was sought and obtained vide Milimani HCJR.E090/2025, on 7/7/2025, to date, highlighting directions given by this court. On the Interested party’s replying affidavit sworn on 28/10/2025, which however was not traceable on the Judiciary E-filing portal for this matter as of 5th November 2025, nor was there record of a payment for it on the CTS, it was submitted that the Judiciary Court Fees Assessment Schedule in the First Schedule Section D, “High Court (Commercial and Tax Cases) at paragraph No. 6 on page No. 7, prescribes a court filing fees of Kshs.750/- for filing of an Affidavit or grounds of opposition. That the ‘The Judiciary Court Fees Assessment Schedule’ was published in the Kenya Gazette Notice Vol. CXXIII-No. 144, of 9th July 2021, Gazette Notice No. 6830 and became effective on 1st July 2021, with the its preamble expressly stating in mandatory terms as follows: “IT IS HEREBY NOTIFIED for the general information of the public fees set out in the schedule hereto shall apply to the lodging or filing of the respective documents in the relevant proceedings before specified Courts and Tribunals.
50. This Court was therefore invited to draw guidance from the decision in the case of; Parkesh Kamlakar Naik & Another Versus Cabinet Secretary Ministry of Interior and Co-Ordination Of National Governments And 2 Others [2017] eKLR, at paragraph 10, where the court held as follows with respect to failure pay court filing fees:
“Failure to pay court filing fees is not a procedural technicality as it goes to the substance of the main pleading which cannot be deemed to be filed without court filing fees being paid and an acknowledgment receipt issued to that effect unless exempted by law or by the court on application.”
51. And that at paragraph No. 21 of the above decision, the court held that: “This court cannot be complicit in such misdeeds. In the premises, I have no option but to declare the notice of motion dated 11th July 2016 and filed in court on 12th July 2016 incompetently filed. I proceed and strike it out.”
52. It was therefore submitted that in the absence of a properly filed Replying Affidavit and the failure by the Respondents to file a response to the application within the stipulated time or by the time these submissions were prepared, this Court should to allow the exparte applicant’s application as an opposed in accordance with the provisions of Order 51 Rule 14(4 of the Civil procedure Rules.
53. The exparte applicant’s counsel further provides a history of the dispute culminating in the HCCOMMARB/E063/2022 DATED 18/7/2024, AND A CERTIFICATE OF ORDER COSTS AGAINST THE GOVERNMENT DATED 8/4/2024 arising from Tender Contract No. TNT/049/2019-2020 to Inplenion Eastern Africa Limited, the Interested Party and the ex parte Applicant for the consideration of Kshs.647,064,000.00 pursuant to which the ex parte Applicant and the Interested Party entered into a Sub-Contracting Agreement on 7/3/2021 for the performance of a tender contract; TNT/049/2019-2020 wherein it was expressly agreed that the ex parte Applicant professional fees was Kshs.303,888,768/= to be paid out of the contract sum of the mother contract. Due to a breach of contract by the Interested Party, a dispute arose from the Sub-contracting Agreement and was referred to Arbitration and an Arbitration Award was published on 17th October 2022 -pages 51 – 136; and how the Decree order absolute was arrived at by the Commercial Division of the High Court., which documents were affectively served upon the respondents herein for compliance as required under section 21 of the Government Proceedings Act and only after the 2 nd respondent failed to com ply that the exparte applicant filed which led to the filing of Garnishee proceedings on 7/2/2025 and these judicial review proceedings.
54. It was submitted that in any event, only the 1 st respondent opposed the application for leave to apply in MILIMANI HCJR/E090/2025 being an application for leave to apply for an Order of Prohibition and Mandamus against the 1st and 2nd Respondent, in which this Court observed at paragraph 12 of the ruling that there was no challenge of the existence of valid court orders that are yet to be satisfied and as to whether there is an appeal or application for setting aside or not, this court had not been shown any order of stay of the orders adopting the final award.
55. The exparte applicant submitted that n the alternative and without prejudice to the position taken with regard to the Interested Party’s unfilled Replying Affidavit, in the unlikely event that this Court is inclined to consider the same, that the said replying affidavit raises the issue of non-performance of the sub-contracting agreement by recall of staff members, which the ex parte Applicant has demonstrated through the Further Affidavit of 5/11/2025 and documentary evidence marked as Exhibit ‘BNH-7 not to be true as members of staff were redeployed within 6 days after recall. Secondly, that the issue of recall of staff members is an attempt to relitigate matters th
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