REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW MISC.APPLICATION NO. E125 OF 2023
REPUBLIC ……………………………………………………..….…. APPLICANT
VERSUS
CHIEF EXECUTION OFFICER,
NATIONAL GOVERNMENT CONSTITUENCY
DEVELOPMENT FUND BOARD………………….……1ST REPONDENT
FUND MANAGER,
DAGORETTI SOUTH CONSTITUENCY
DEVELOPMENT FUND ………………………………..2ND RESPONDENT
CONSTITUENCY
DEVELOPMENT FUND COMMITTEE …………..…..3RD RESPONDENT
MARY WANJIKU NGARI ……………………..….EX PARTE APPLICANT
JUDGMENT
1. The Application that is before this court for determination is the Notice of Motion dated 21st November, 2023, wherein the Applicant, seeks the following orders: -
a) AN ORDER OF MANDAMUS be issued to compel the Respondents to pay the ex parte applicant, the decretal sum together with interest thereon of Kshs.32 680 000/= which is due to date on account of judgment delivered on 17th November, 2017 against the Respondent's herein n ELC NO. 8 OF 2015 SAMWEL NGARI GITHINJI -VS- THE NATION AL CONSTITUENCY DEVELOPMENT FUND BOARD & DAGORETTI SOUTH CONSTITUENCY DEVELOPMENT FUND COMMITTEE.
b) AN ORDER OF MANDAMUS be issued to compel the Respondent to pay the ex parte Applicant, the taxed costs together with interest thereon of Kshs. 1,799,275/- which is due to date on account of the Certificate of Taxation dated 3rd September 2019 in ELC No. 8 of 2015.
2. The Respondent be and is hereby ordered to comply by satisfying the Decree, costs and interest in ELC No. 8 of 2015 within fourteen (14) days from the date of service of the order of mandamus.
3. In default, Notice to Show cause do issue against the Respondents why they should not be cited for contempt of court.
4. The costs of this application be borne by the Respondent.
5. The Application is accompanied by a verifying affidavit sworn by Mary Wanjiku Ngari.
6. The Application is opposed by the 1st Respondent vide the Replying Affidavit sworn on 30th November 2023 by Simon M. Ndweka. It is also opposed by the 2nd and 3rd Respondents vide the Replying Affidavit sworn on 30th November 2023 by Job Tuta.
EX-PARTE APPLICANT’S case:
7. The Ex-parte Applicant is the decree-holder in ELC No. 8 OF 2015; Samuel Ngari Githinji – VS- the Constituency Development Fund Board and Dagoretti South Constituency Development Fund Committee. The Judgement therein was delivered on 17th November 2017.
8. Subsequent to the delivery of the said judgement the Plaintiff Samuel Ngari Githinji (deceased) passed on and the Decree-Holder applied for and was granted of letters of administration for the purposes of taking over and continuing with the said suit. Further, the Defendants were served with the Party to Party Bill of Costs after the substitution.
9. Upon the delivery of the judgement, the 1st Defendant applied for and was granted temporary stay of execution for 30 days. The 1st Defendant also promptly filed a Notice of Appeal and subsequently a substantive application in the Court of Appeal pending the hearing and determination of the appeal.
10. The Application was compromised by consent and the 1st Defendant had a stay granted in his favour pending appeal. It is common ground that the appeal abated by operation of the law on or around 29th of April 2018. Consequently, and again by operation of the law, the Notice of Appeal and the record of appeal became extinct. The stay orders also expired with the abatement of the appeal and the decretal sum became due and owing.
11. Despite the foregoing, the 1st Defendant never took any steps to revive the appeal and/or apply for substitution. The Decree-Holder/Ex-parte applicant became entitled to fruits of the judgement and the decree therefrom.
12. Demands was made for the settlement of the Decree which demands never solicited any response – positive/negative or even a mere acknowledgement – from the judgement –debtors.
13. The Decree-Holder having failed to get any response took out garnishee proceedings and obtained an order nisi attaching the 2nd Defendant’s/Judgement-debtors account number 0630262089069 at Equity bank of Kenya. Eventually however the order nisi was vacated by Hon. Justice Okong’o.
14. The garnishee proceedings provoked the Judgement Debtors into a flurry of applications both in the High Court and the Court of appeal.
15. The Judgement-Debtors as vulnerable and the flurry of applications ended with two applications in the court of appeal namely; a) Civil Application No; E 052 OF 2021 b) Civil Application No. E 114 OF 2021 The former was certified urgent and was promptly heard and disposed of. The Court of Appeal dismissed the same and noted inter-alia that it was an abuse of the due process of the Court. The latter was not certified urgent but it must be noted that both applications were based on similar grounds and sought more or less similar prayers. Finally, the court of Appeal formally marked the 1st Defendant/Judgement-debtor’s Appeal as having abated. As it is there is no appeal pending against the Judgement sought to enforced herein. As part of what may constitute a further abuse of the process of the court, the 1st Defendant/Judgement-Debtor has again filed a frivolous and vexatious application seeking stay of execution. The Applicant reserve further comments on the same as we shall do so before the appropriate court if at all it shall come up for hearing. The Applicant can however state from the bar that despite the application being filed under certificate of urgency, the court has not even deemed it fit to certify it as such.
16. In respect to the 2nd Defendant/Judgement-Debtor any challenge of the judgement and decree was extinguished within 14 days of the delivery of the judgement. Even if the appeal is to be revived, the 2nd Defendant did not file a cross-appeal and its application having been dismissed, its right of appeal became extinguished after the lapse of the 14-day period of filing the Notice of Appeal. The Decree against the 2nd Defendant/Judgement-Debtor is a fait accompli. In a nutshell, the Decree against both Defendants/Judgement-Debtors must be settled.
17. The Judgement-Debtors have no intentions of amicably settling the said decree. The trial court held that garnishee proceedings are not available to the Judgement-Debtor. It follows that execution by attachment is also not an option.
18. This court is being invited to come to the aid and assistance of the Decree-Holder to realize the fruits of her decree. The Judgement-Debtors appropriated illegally the suit property. It has become public property.
19. The Defendants/Judgement-Debtors budgeted for and allocated funds for the construction of a road on/across the property. In their wisdom they didn’t see the need to budget for and appropriate funds to compensate the owner of the land.
20. More than fifteen years down the line they still do not see the need to make provisions in their annual budget for compensation to the Decree-Holder.
21. The Chamber Summons for leave to commence judicial review proceedings and the substantive Notice of Motion are both in compliance with the relevant statutory provisions of the law and more specifically order 53 of the Civil Procedure Rules. The chamber Summons is supported by the Ex-Parte Applicant supporting affidavit. The last document is the Statutory Statement.
22. The scope of an Order of Mandamus was discussed in the Court of Appeal case of Republic -vs- Kenya National Examination Council ex-parte Gatheni & other [1997] eKLR where the court stated that;- “The order of mandamus is of a most extensive remedial nature, and is in form, a command issuing from the court of justice, directed to any person, corporation or an 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 of redress is less convenient, beneficial or effectual.
23. She relies on the case of Republic –vs- County Government of Bomet ex-parte dkn [2021] eKLR where court in a similar matter, stated that; “In the instant case, the Ex-parte applicant has demonstrated that he has a judgement against the Respondent, the County Government of Bomet which has failed to honour its obligation to pay the Decretal sum. It is my fair that it is compelled to perform their duty and pay the Ex-Parte applicant.”
24. In REPUBLIC –VS- ATTORNEY GENERAL EX-PARTE MIRIAM WAMBUGU & ANOR [2021] eKLR Nyamweya J, as she then was, stated that; -
“As to whether the Respondent herein is under a duty to pay the subject decretal sums, an order of mandamus is normally issued when an officer or authority by compulsion of law or statute is required to perform a duty, and that duty, despite demand in writing, has not been performed. It is not in dispute in the present application that judgement was entered in favour of the ex-parte Applicants in HCCC NO 661 OF 2007 as against the Respondent.”
25. In REPUBLIC –VS- ATTORNEY GENERAL & ANOR EX-PARTE JAMES ALFRED KOROSO HCJR MISC APPL. NO. 44 OF 2012 where it was held that; -
“In the present case the ex-parte applicant has no other option of realizing the fruits of his judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that has been awarded is realized.”
THE 1ST RESPONDENT’S CASE
26. It is their case that, Order 53 Rule 1 (2) of the Civil Procedure Rules, Cap 21 Laws of Kenya stipulates as follows: -
"(2) An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by-
(a) A statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and
(b) Affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings
in any court between the applicant and the respondent over the same subject matter and that the cause of action relates to the applicants named in the application."
27. The Chamber Summons Application dated 15th November, 2023 is accompanied by the supported by a supporting affidavit as opposed to a verifying affidavit and the application for judicial review at the leave stage cannot stand because the facts in the statutory statement of facts have not been verified.
28. Reliance is placed in the case of Republic v Senior Resident magistrate Nyando & 2 others Ex parte Enock Obengo (2009) eKLR, the ex parte applicant's chamber summons for leave had been accompanied by a verifying affidavit that was undated and unsigned, the Honourable court while dismissing the application held as follows: -
"A verifying affidavit not dated nor authenticated is invalid and incapable of verifying the accompanying statement of facts. It would therefore appear that the leave to file this application was improperly granted"
29. It also relies on the case of Chairman (BOG) Sigalagala Polytechnic v Republic Ex parte Nelson Ogwero 2015) eKLR, the Honourable Court of Appeal upon citing the Order 53 Rule 1 and Order 53 Rule 4 (1) of the Civil Procedure Act, 2010 held as follows: -
"It is therefore plain beyond peradventure from the above provisions that an application for leave must be accompanied by a statutory statement of facts and an affidavit verifying those facts. The two documents contain the basis or the pith and marrow of the application for leave. They are the documents which the learned judge at the ex parte stage of the application considers before granting or refusing leave. The requirement of those documents is couched in mandatory terms both under the Law Reform Act and under Order 53 promulgated thereunder. In my view, a Chamber Summons for leave to apply for judicial review orders which is not accompanied by a statutory statement of facts and an affidavit verifying those facts would be incompetent."
30. Justice F. Azangalala in the above case, emphasized the importance of the statement of facts and the verifying affidavit by stating that the two documents contain the basis and marrow of the application for leave and we submit that without the verifying affidavit the statutory statement of facts hangs in air with no legs to stand on.
31. The ex parte applicant’s supporting Affidavit cannot be termed as a verifying affidavit as envisaged under Order 53 Rule 1 (2) of the Civil Procedure Rules, 2010. The statutory statement of facts is the last document in the chamber summons application and it is therefore not verified at all and the application should be dismissed.
32. The Notice of Motion dated 21st November, 2023 is accompanied by a verifying affidavit which had not been filed initially at the leave stage. The said verifying affidavit has been filed without leave of the court and we urge this Honourable court to find that the verifying affidavit sworn on 21st November, 2023 to be irregularly on record and proceed to have the same struck out and subsequently dismiss the Application dated 21st November, 2023.
33. They rely on the case of Chairman (BOG) Sigalagala Polytechnic v Republic Ex-parte Nelson Ogwero 2015) eKLR (supra) where the Honourable Justice F. Azangalala while finding that the Respondent's chamber summons and subsequent Notice of Motion could not be saved stated that; -
“the filing of a new verifying affidavit without leave of the court which do not accompany the application for leave contravened Order 53 (4) of the Civil Procedure Rules"
34. The above Court further while finding that Article 159 of the Constitution is not a panacea for every procedural lapse cited the case of Raila Odinga & 5 Others v IEBC & Others (Supreme Court Petition No. 3 of 2013 (UR), where it was held that: -
“Our attention has repeatedly been drawn to the provisions of the Article 159 (2) (d) of the Constitution which obliges a court of law to administer justice without undue regard to procedural technicalities. The operative words are the ones we have rendered in bold. The Article simply means that a court of law should not pay undue attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the courts of law (emphasis supplied)."
35. On the issue of the certificate of costs it is their submission that Section 21 (1) and (2) of the Government Proceedings Act provides as follows:
"(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 1st Respondent in this case which is a government body, was not served with the Certificate of Order against it as result of which the Applicant is not entitled to the orders sought.
37. Reliance is placed in the case of Republic v County Government of Vihiga Ex parte Global Exhibitions Incorporated Ltd [20 21] eKLR, where the Honourable Court stated as follows while dismissing Judicial Review Application for noncompliance with the relevant law cited the case of Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [20121 eKLR, where it was stated that:
“The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon Attorney General, section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon.
38. The court in Republic v County Government of Vihiga Ex parte Global Exhibitions Incorporated Ltd 120211 eKLR (supra) held that: -
“I would reiterate that the statutory duty on the government to settle any money decree against it only arises when it is served with the certificate of order against it. As there is no proof that a certificate of order against government in this case was served, it would be my finding that it has not been demonstrated that the duty on the part of the respondent to settle the decree has accrued, and the respondent cannot be said to has refused or neglected to settle the decree.
39. In the case of Republic v Jacinto Aluoch Odhiambo, County Secretary (Kakamega County) & another; Ex- parte: Vincent Chokaa t/a V Chokaa Co Advocate [20201 eKLR, it was stated that an application for Mandamus can only be made after obtaining the certificate of order and the court proceeded to dismiss the Judicial Review Application upon finding that the Certificate of Order had not been annexed. The Court while determining the Judicial Review application also held that: -
“The procedure of obtaining the certificate of order is prescribed under Order 29 Rule 3 of the Civil Procedure Rules, 2010 which provides for the application for a certificate under section 21 of the Government Proceedings Act in the following words: -
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 variation as circumstances may require.
40. The failure to obtain and annex a Certificate of Order to this Judicial Review Application is fatal and the suit should be dismissed.
41. On the issue whether Judicial review application herein is premature in view of the fact that there is a pending Civil Application No. E114 of 2021 in the Court of appeal seeking to revive the abated Civil Appeal No. 18 of 2018, on the ground that there is a pending application at the Court of Appeal being Civil Application E114 of 2021 National Government Constituencies Development Fund Board -vs- Samuel Ngari Githinji and Another. The said Civil Application E114 of 2021 is seeking to revive the abated Civil Appeal No. 18 of 2018. The Civil Appeal No. 18 of 2018 is an appeal from the Judgment in Nairobi ELC No. 8 of 2015.
42. They submit that the judicial review application herein is premature on the ground that our Civil application E114 of 2021 is yet to be determined by court. The grant of orders sought herein will therefore prejudice the 1st Respondent who may be condemned to settle the liquidated decretal sum which is substantial and yet there is a pending application seeking to revive the abated appeal.
43. The 1st Respondent has filed an application in ELC No.8 of 2015 seeking stay of Judgment/ decree pending the hearing and determination of our Civil Appeal No. E114 of 2021. Orders to the said application were issued on 7th December, 2023 in which the Honourable court ordered for the application to be served for interparte hearing on 6th February, 2024. Kindly your Lordship find attached order which was issued after we had filed our replying affidavit and upon being served with submissions by the ex parte applicant.
THE 2ND AND 3 RD RESPONDENT’S CASE
44. In opposing the Application, the 2nd and 3rd Respondents rely on the replying affidavit of Job Tuta (Tuta) sworn on 30th November 2023.
45. It is their case that the 2nd and 3rd Respondents have not been served with any Certificate of Order against government neither have they seen any demand from the applicant.
46. As set out in the replying affidavit of Tuta, the Committee did not have knowledge of the judgment given in Nairobi ELC 8 OF 2018 Samuel Ngari versus National Constituency 2 Development Fund Board (The Board) & Dagoretti South Constituency Development Fund Committee(The Committee), until late January 2021 when it was served with a garnishee order nisi attaching the sum of Kshs 20,129,552.00 held in the Committee’s bank account at Equity Bank, Kawangware Branch in satisfaction of the judgment and the decree of 3rd November 2017.
47. Section 43 (8) of the National Government Constituency Development Fund Act provides that the term of office of the members of a Constituency Committee shall be two years and shall be renewable but shall expire upon the appointment of a new Constituency Committee in the manner provided for in the Act, or as may be approved by the Board.
48. At the time the suit was filed in 2015 there was a different Fund Manager who left the Committee in 2019. Neither the 2nd Respondent nor the 3rd Respondent or any other Committee officials in the year 2021 knew of the judgment until the garnishee order nisi was served upon the Committee in January 2021.
49. Upon being served with the garnishee order, the Committee took urgent steps to instruct an advocate to come on record in February 2021 whereupon the necessary steps were taken, and the Garnishee Order set aside on 29th July 2021.
50. Further steps were taken to challenge the judgment in this case by taking the following actions: a. Filing notice of cross appeal in Nairobi Civil Appeal Number 18 of 2018. b. Filing an application for stay of execution of the decree in Court of Appeal Civil Application No. Nai E052 of 2021 Dagoretti South Constituency Development Fund 3 Committee versus Samuel Githinji and Dagoretti South Constituency Development Fund Board. c. Filing Court of Appeal Civil Appeal (Application)number 18 of 2018 under Rule 99(2) of the Court of Appeal Rules seeking leave to extend the time within which the application to substitute Mr Samuel Ngari the 1st Respondent in the appeal ought to have been made.
51. From the foregoing, the Committee has been actively pursuing the various applications in the Court of Appeal in addition to pursuing the appeal and cross appeal filed in Civil Appeal No 18 of 2018 which came up for hearing on 18th October 2023 wherein the Appeal was marked as abated.
52. In addition to the applications filed by the Committee, the Board also filed an application in Court of Appeal Civil Application E114 of 2021 dated 14th April 2021 seeking to revive Civil Appeal Number 18 of 2018. This application is pending hearing at the Court of Appeal.
53. The 2nd and 3rd Respondents submit that it is not correct as alleged by the applicant that there has been delay in settlement of the decree for over 5 years. The Committee has been exercising its rights within the hierarchy of the Courts and has been seeking indulgence in the Court of Appeal with the latest appearance in the Court on 18th October 2023.
54. Without prejudice to the foregoing, they submit that the Committee has not received any demand for payment of the decretal sum or any decree or certificate of Order against government from the applicant and no evidence of such demand or certificate of order against the government has been produced before this court.
55. The 2nd and 3rd Respondents’ are not aware of the alleged Certificate of taxation awarding the applicant the sum of Kshs 1,799,275.00 as costs in Nairobi ELC 8 of 2018 as no Certificate of Costs has been produced or served on the Committee.
56. The Respondents further submit that the Committee operates within the provisions of the National Government Constituency Development Fund Act, 2015(The Act) and operates within the budgetary allocations from the Board.
57. Pursuant to Section 28(1)(1) of the Act, the Committee prepares and submits its annual budgets and proposals to the Board and the annual allocations are prioritized by the Committee. The budgetary proposals for the year 2023/2024 have already been submitted to the Board.
58. The decree herein is not part of the budgetary allocation for the year 2023/2024 considering that the Appeal process is not completed because there is an application by the Board which is pending hearing at the Court of Appeal. This application is therefore premature.
59. They submit that allowing this application and ordering payment of the decretal sum while the Application Civil Application No E114 Of 2021 to revive Civil Appeal 18 of 2018 is pending hearing in the Court of Appeal, will be prejudicial to the Respondents if the both the Application to revive the Appeal and the Appeal succeed.
60. If this application is granted before the completion of the appeal process, the Committee, and the people of Dagoretti South will suffer substantial loss considering that the sum of money involved is huge. The Committee only handles funds that belong to the public which are strictly budgeted on priorities to the benefit of the constituents of Dagoretti Constituency. Reliance is placed in Republic v County Government of Vihiga Ex parte Kenchuan Architects [2021] Eklr.
61. They urge the Court to exercise its discretion and dismiss the application dated 21st November 2023 as it is an abuse against the Court process and allow parties time to complete the Appeal process to avoid a miscarriage of justice to the Respondents and to the people of Dagoretti South Constituency.
ANALYSIS AND DETERMINATION:
62. Upon considering the arguments advanced by the parties I find the following to be the issues for determination:
a) Whether compliance with Order 53 of The Civil Procedure Rules is fatal or not.
b) Whether none compliance with Section 21 of Government Proceedings Act is mandatory.
c) Whether or not service of a certificate of the cost is necessary in proceedings like the one before the court.
Whether compliance with order 53 of The Civil Procedure Rules or one is fatal or not:
63. The applicant in his submissions confirms that the suit is supported by a supporting affidavit as opposed to a verifying that it. This does not sit well with their respondents. This omission offends Order 53 of The Civil Procedure Rules. The omission cannot be cured by Article 159 of the Constitution. The lapse is sufficient to render the entire application fatally defective as a whole and I so hold.
Whether none compliance with Section 21 of Government Proceedings Act is mandatory:
64. The Respondent have also challenged the Application on another front. Before an order of mandamus is issued, an Applicant must abide by the procedure in Section 21 of Government Proceedings Act which provides:
“(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.”
Section 21 (3) of the said Act on the other hand provides:
“If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:
Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.”
65. In the case of Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR while dealing with the said provisions expressed herself as follows:
“In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon Attorney General, section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues.”
66. The circumstances under which judicial review order of mandamus are issued were set out in Republic v Kenya National Examinations Council ex parte Gathenji & 8 Others Civil Appeal No 234 of 1996, where the Court of Appeal cited with approval, Halsbury’s Law of England, 4th Edn. Vol. 7 p. 111 para 89 thus:
“The order of mandamus is of most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."...These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”
67. According to the 2nd and 3rd Respondents, the Committee has not received any demand for payment of the decretal sum or any decree or certificate of Order against government from the applicant and no evidence of such demand or certificate of order against the government has been produced before this court.
68. The 2nd and 3rd Respondents’ are not aware of the alleged Certificate of taxation awarding the applicant the sum of Kshs 1,799,275.00 as costs in Nairobi ELC 8 of 2018 as no Certificate of Costs has been produced or served on the Committee.
69. Section 107 (1)of the Evidence Act provides that;
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
70. Section 109 the Evidence Act provides that:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
71. There ex parte applicant has failed to tender evidence to prove that the certificate of costs exist. All that the applicant said in relation to the the issue of costs is that the Defendants were served with the Party to Party Bill of Costs after the substitution.
72. The certificate of costs is a mandatory requirement in execution proceedings under the Government Proceedings Act. Failure to tender such critical evidence renders the entire application for the order of mandamus fatal and I so hold.
Disposition;
73. The Application is not supported by a Verifying affidavit or a Certificate of Costs.
74. The Applicant has not made out a case that it is entitled to the orders sought.
Order;
The application dated 21st November, 2023 is dismissed with costs.
Dated, Signed, and Delivered at Nairobi this 8th Day of April 2024.
………………………………………
J. CHIGITI (SC)
JUDGE
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW MISC.APPLICATION NO. E125 OF 2023
REPUBLIC ……………………………………………………..….…. APPLICANT
VERSUS
CHIEF EXECUTION OFFICER,
NATIONAL GOVERNMENT CONSTITUENCY
DEVELOPMENT FUND BOARD………………….……1ST REPONDENT
FUND MANAGER,
DAGORETTI SOUTH CONSTITUENCY
DEVELOPMENT FUND ………………………………..2ND RESPONDENT
CONSTITUENCY
DEVELOPMENT FUND COMMITTEE …………..…..3RD RESPONDENT
MARY WANJIKU NGARI ……………………..….EX PARTE APPLICANT
JUDGMENT
1. The Application that is before this court for determination is the Notice of Motion dated 21st November, 2023, wherein the Applicant, seeks the following orders: -
a) AN ORDER OF MANDAMUS be issued to compel the Respondents to pay the ex parte applicant, the decretal sum together with interest thereon of Kshs.32 680 000/= which is due to date on account of judgment delivered on 17th November, 2017 against the Respondent's herein n ELC NO. 8 OF 2015 SAMWEL NGARI GITHINJI -VS- THE NATION AL CONSTITUENCY DEVELOPMENT FUND BOARD & DAGORETTI SOUTH CONSTITUENCY DEVELOPMENT FUND COMMITTEE.
b) AN ORDER OF MANDAMUS be issued to compel the Respondent to pay the ex parte Applicant, the taxed costs together with interest thereon of Kshs. 1,799,275/- which is due to date on account of the Certificate of Taxation dated 3rd September 2019 in ELC No. 8 of 2015.
2. The Respondent be and is hereby ordered to comply by satisfying the Decree, costs and interest in ELC No. 8 of 2015 within fourteen (14) days from the date of service of the order of mandamus.
3. In default, Notice to Show cause do issue against the Respondents why they should not be cited for contempt of court.
4. The costs of this application be borne by the Respondent.
5. The Application is accompanied by a verifying affidavit sworn by Mary Wanjiku Ngari.
6. The Application is opposed by the 1st Respondent vide the Replying Affidavit sworn on 30th November 2023 by Simon M. Ndweka. It is also opposed by the 2nd and 3rd Respondents vide the Replying Affidavit sworn on 30th November 2023 by Job Tuta.
EX-PARTE APPLICANT’S case:
7. The Ex-parte Applicant is the decree-holder in ELC No. 8 OF 2015; Samuel Ngari Githinji – VS- the Constituency Development Fund Board and Dagoretti South Constituency Development Fund Committee. The Judgement therein was delivered on 17th November 2017.
8. Subsequent to the delivery of the said judgement the Plaintiff Samuel Ngari Githinji (deceased) passed on and the Decree-Holder applied for and was granted of letters of administration for the purposes of taking over and continuing with the said suit. Further, the Defendants were served with the Party to Party Bill of Costs after the substitution.
9. Upon the delivery of the judgement, the 1st Defendant applied for and was granted temporary stay of execution for 30 days. The 1st Defendant also promptly filed a Notice of Appeal and subsequently a substantive application in the Court of Appeal pending the hearing and determination of the appeal.
10. The Application was compromised by consent and the 1st Defendant had a stay granted in his favour pending appeal. It is common ground that the appeal abated by operation of the law on or around 29th of April 2018. Consequently, and again by operation of the law, the Notice of Appeal and the record of appeal became extinct. The stay orders also expired with the abatement of the appeal and the decretal sum became due and owing.
11. Despite the foregoing, the 1st Defendant never took any steps to revive the appeal and/or apply for substitution. The Decree-Holder/Ex-parte applicant became entitled to fruits of the judgement and the decree therefrom.
12. Demands was made for the settlement of the Decree which demands never solicited any response – positive/negative or even a mere acknowledgement – from the judgement –debtors.
13. The Decree-Holder having failed to get any response took out garnishee proceedings and obtained an order nisi attaching the 2nd Defendant’s/Judgement-debtors account number 0630262089069 at Equity bank of Kenya. Eventually however the order nisi was vacated by Hon. Justice Okong’o.
14. The garnishee proceedings provoked the Judgement Debtors into a flurry of applications both in the High Court and the Court of appeal.
15. The Judgement-Debtors as vulnerable and the flurry of applications ended with two applications in the court of appeal namely; a) Civil Application No; E 052 OF 2021 b) Civil Application No. E 114 OF 2021 The former was certified urgent and was promptly heard and disposed of. The Court of Appeal dismissed the same and noted inter-alia that it was an abuse of the due process of the Court. The latter was not certified urgent but it must be noted that both applications were based on similar grounds and sought more or less similar prayers. Finally, the court of Appeal formally marked the 1st Defendant/Judgement-debtor’s Appeal as having abated. As it is there is no appeal pending against the Judgement sought to enforced herein. As part of what may constitute a further abuse of the process of the court, the 1st Defendant/Judgement-Debtor has again filed a frivolous and vexatious application seeking stay of execution. The Applicant reserve further comments on the same as we shall do so before the appropriate court if at all it shall come up for hearing. The Applicant can however state from the bar that despite the application being filed under certificate of urgency, the court has not even deemed it fit to certify it as such.
16. In respect to the 2nd Defendant/Judgement-Debtor any challenge of the judgement and decree was extinguished within 14 days of the delivery of the judgement. Even if the appeal is to be revived, the 2nd Defendant did not file a cross-appeal and its application having been dismissed, its right of appeal became extinguished after the lapse of the 14-day period of filing the Notice of Appeal. The Decree against the 2nd Defendant/Judgement-Debtor is a fait accompli. In a nutshell, the Decree against both Defendants/Judgement-Debtors must be settled.
17. The Judgement-Debtors have no intentions of amicably settling the said decree. The trial court held that garnishee proceedings are not available to the Judgement-Debtor. It follows that execution by attachment is also not an option.
18. This court is being invited to come to the aid and assistance of the Decree-Holder to realize the fruits of her decree. The Judgement-Debtors appropriated illegally the suit property. It has become public property.
19. The Defendants/Judgement-Debtors budgeted for and allocated funds for the construction of a road on/across the property. In their wisdom they didn’t see the need to budget for and appropriate funds to compensate the owner of the land.
20. More than fifteen years down the line they still do not see the need to make provisions in their annual budget for compensation to the Decree-Holder.
21. The Chamber Summons for leave to commence judicial review proceedings and the substantive Notice of Motion are both in compliance with the relevant statutory provisions of the law and more specifically order 53 of the Civil Procedure Rules. The chamber Summons is supported by the Ex-Parte Applicant supporting affidavit. The last document is the Statutory Statement.
22. The scope of an Order of Mandamus was discussed in the Court of Appeal case of Republic -vs- Kenya National Examination Council ex-parte Gatheni & other [1997] eKLR where the court stated that;- “The order of mandamus is of a most extensive remedial nature, and is in form, a command issuing from the court of justice, directed to any person, corporation or an 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 of redress is less convenient, beneficial or effectual.
23. She relies on the case of Republic –vs- County Government of Bomet ex-parte dkn [2021] eKLR where court in a similar matter, stated that; “In the instant case, the Ex-parte applicant has demonstrated that he has a judgement against the Respondent, the County Government of Bomet which has failed to honour its obligation to pay the Decretal sum. It is my fair that it is compelled to perform their duty and pay the Ex-Parte applicant.”
24. In REPUBLIC –VS- ATTORNEY GENERAL EX-PARTE MIRIAM WAMBUGU & ANOR [2021] eKLR Nyamweya J, as she then was, stated that; -
“As to whether the Respondent herein is under a duty to pay the subject decretal sums, an order of mandamus is normally issued when an officer or authority by compulsion of law or statute is required to perform a duty, and that duty, despite demand in writing, has not been performed. It is not in dispute in the present application that judgement was entered in favour of the ex-parte Applicants in HCCC NO 661 OF 2007 as against the Respondent.”
25. In REPUBLIC –VS- ATTORNEY GENERAL & ANOR EX-PARTE JAMES ALFRED KOROSO HCJR MISC APPL. NO. 44 OF 2012 where it was held that; -
“In the present case the ex-parte applicant has no other option of realizing the fruits of his judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that has been awarded is realized.”
THE 1ST RESPONDENT’S CASE
26. It is their case that, Order 53 Rule 1 (2) of the Civil Procedure Rules, Cap 21 Laws of Kenya stipulates as follows: -
"(2) An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by-
(a) A statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and
(b) Affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings
in any court between the applicant and the respondent over the same subject matter and that the cause of action relates to the applicants named in the application."
27. The Chamber Summons Application dated 15th November, 2023 is accompanied by the supported by a supporting affidavit as opposed to a verifying affidavit and the application for judicial review at the leave stage cannot stand because the facts in the statutory statement of facts have not been verified.
28. Reliance is placed in the case of Republic v Senior Resident magistrate Nyando & 2 others Ex parte Enock Obengo (2009) eKLR, the ex parte applicant's chamber summons for leave had been accompanied by a verifying affidavit that was undated and unsigned, the Honourable court while dismissing the application held as follows: -
"A verifying affidavit not dated nor authenticated is invalid and incapable of verifying the accompanying statement of facts. It would therefore appear that the leave to file this application was improperly granted"
29. It also relies on the case of Chairman (BOG) Sigalagala Polytechnic v Republic Ex parte Nelson Ogwero 2015) eKLR, the Honourable Court of Appeal upon citing the Order 53 Rule 1 and Order 53 Rule 4 (1) of the Civil Procedure Act, 2010 held as follows: -
"It is therefore plain beyond peradventure from the above provisions that an application for leave must be accompanied by a statutory statement of facts and an affidavit verifying those facts. The two documents contain the basis or the pith and marrow of the application for leave. They are the documents which the learned judge at the ex parte stage of the application considers before granting or refusing leave. The requirement of those documents is couched in mandatory terms both under the Law Reform Act and under Order 53 promulgated thereunder. In my view, a Chamber Summons for leave to apply for judicial review orders which is not accompanied by a statutory statement of facts and an affidavit verifying those facts would be incompetent."
30. Justice F. Azangalala in the above case, emphasized the importance of the statement of facts and the verifying affidavit by stating that the two documents contain the basis and marrow of the application for leave and we submit that without the verifying affidavit the statutory statement of facts hangs in air with no legs to stand on.
31. The ex parte applicant’s supporting Affidavit cannot be termed as a verifying affidavit as envisaged under Order 53 Rule 1 (2) of the Civil Procedure Rules, 2010. The statutory statement of facts is the last document in the chamber summons application and it is therefore not verified at all and the application should be dismissed.
32. The Notice of Motion dated 21st November, 2023 is accompanied by a verifying affidavit which had not been filed initially at the leave stage. The said verifying affidavit has been filed without leave of the court and we urge this Honourable court to find that the verifying affidavit sworn on 21st November, 2023 to be irregularly on record and proceed to have the same struck out and subsequently dismiss the Application dated 21st November, 2023.
33. They rely on the case of Chairman (BOG) Sigalagala Polytechnic v Republic Ex-parte Nelson Ogwero 2015) eKLR (supra) where the Honourable Justice F. Azangalala while finding that the Respondent's chamber summons and subsequent Notice of Motion could not be saved stated that; -
“the filing of a new verifying affidavit without leave of the court which do not accompany the application for leave contravened Order 53 (4) of the Civil Procedure Rules"
34. The above Court further while finding that Article 159 of the Constitution is not a panacea for every procedural lapse cited the case of Raila Odinga & 5 Others v IEBC & Others (Supreme Court Petition No. 3 of 2013 (UR), where it was held that: -
“Our attention has repeatedly been drawn to the provisions of the Article 159 (2) (d) of the Constitution which obliges a court of law to administer justice without undue regard to procedural technicalities. The operative words are the ones we have rendered in bold. The Article simply means that a court of law should not pay undue attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the courts of law (emphasis supplied)."
35. On the issue of the certificate of costs it is their submission that Section 21 (1) and (2) of the Government Proceedings Act provides as follows:
"(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 1st Respondent in this case which is a government body, was not served with the Certificate of Order against it as result of which the Applicant is not entitled to the orders sought.
37. Reliance is placed in the case of Republic v County Government of Vihiga Ex parte Global Exhibitions Incorporated Ltd [20 21] eKLR, where the Honourable Court stated as follows while dismissing Judicial Review Application for noncompliance with the relevant law cited the case of Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [20121 eKLR, where it was stated that:
“The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon Attorney General, section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon.
38. The court in Republic v County Government of Vihiga Ex parte Global Exhibitions Incorporated Ltd 120211 eKLR (supra) held that: -
“I would reiterate that the statutory duty on the government to settle any money decree against it only arises when it is served with the certificate of order against it. As there is no proof that a certificate of order against government in this case was served, it would be my finding that it has not been demonstrated that the duty on the part of the respondent to settle the decree has accrued, and the respondent cannot be said to has refused or neglected to settle the decree.
39. In the case of Republic v Jacinto Aluoch Odhiambo, County Secretary (Kakamega County) & another; Ex- parte: Vincent Chokaa t/a V Chokaa Co Advocate [20201 eKLR, it was stated that an application for Mandamus can only be made after obtaining the certificate of order and the court proceeded to dismiss the Judicial Review Application upon finding that the Certificate of Order had not been annexed. The Court while determining the Judicial Review application also held that: -
“The procedure of obtaining the certificate of order is prescribed under Order 29 Rule 3 of the Civil Procedure Rules, 2010 which provides for the application for a certificate under section 21 of the Government Proceedings Act in the following words: -
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 variation as circumstances may require.
40. The failure to obtain and annex a Certificate of Order to this Judicial Review Application is fatal and the suit should be dismissed.
41. On the issue whether Judicial review application herein is premature in view of the fact that there is a pending Civil Application No. E114 of 2021 in the Court of appeal seeking to revive the abated Civil Appeal No. 18 of 2018, on the ground that there is a pending application at the Court of Appeal being Civil Application E114 of 2021 National Government Constituencies Development Fund Board -vs- Samuel Ngari Githinji and Another. The said Civil Application E114 of 2021 is seeking to revive the abated Civil Appeal No. 18 of 2018. The Civil Appeal No. 18 of 2018 is an appeal from the Judgment in Nairobi ELC No. 8 of 2015.
42. They submit that the judicial review application herein is premature on the ground that our Civil application E114 of 2021 is yet to be determined by court. The grant of orders sought herein will therefore prejudice the 1st Respondent who may be condemned to settle the liquidated decretal sum which is substantial and yet there is a pending application seeking to revive the abated appeal.
43. The 1st Respondent has filed an application in ELC No.8 of 2015 seeking stay of Judgment/ decree pending the hearing and determination of our Civil Appeal No. E114 of 2021. Orders to the said application were issued on 7th December, 2023 in which the Honourable court ordered for the application to be served for interparte hearing on 6th February, 2024. Kindly your Lordship find attached order which was issued after we had filed our replying affidavit and upon being served with submissions by the ex parte applicant.
THE 2ND AND 3 RD RESPONDENT’S CASE
44. In opposing the Application, the 2nd and 3rd Respondents rely on the replying affidavit of Job Tuta (Tuta) sworn on 30th November 2023.
45. It is their case that the 2nd and 3rd Respondents have not been served with any Certificate of Order against government neither have they seen any demand from the applicant.
46. As set out in the replying affidavit of Tuta, the Committee did not have knowledge of the judgment given in Nairobi ELC 8 OF 2018 Samuel Ngari versus National Constituency 2 Development Fund Board (The Board) & Dagoretti South Constituency Development Fund Committee(The Committee), until late January 2021 when it was served with a garnishee order nisi attaching the sum of Kshs 20,129,552.00 held in the Committee’s bank account at Equity Bank, Kawangware Branch in satisfaction of the judgment and the decree of 3rd November 2017.
47. Section 43 (8) of the National Government Constituency Development Fund Act provides that the term of office of the members of a Constituency Committee shall be two years and shall be renewable but shall expire upon the appointment of a new Constituency Committee in the manner provided for in the Act, or as may be approved by the Board.
48. At the time the suit was filed in 2015 there was a different Fund Manager who left the Committee in 2019. Neither the 2nd Respondent nor the 3rd Respondent or any other Committee officials in the year 2021 knew of the judgment until the garnishee order nisi was served upon the Committee in January 2021.
49. Upon being served with the garnishee order, the Committee took urgent steps to instruct an advocate to come on record in February 2021 whereupon the necessary steps were taken, and the Garnishee Order set aside on 29th July 2021.
50. Further steps were taken to challenge the judgment in this case by taking the following actions: a. Filing notice of cross appeal in Nairobi Civil Appeal Number 18 of 2018. b. Filing an application for stay of execution of the decree in Court of Appeal Civil Application No. Nai E052 of 2021 Dagoretti South Constituency Development Fund 3 Committee versus Samuel Githinji and Dagoretti South Constituency Development Fund Board. c. Filing Court of Appeal Civil Appeal (Application)number 18 of 2018 under Rule 99(2) of the Court of Appeal Rules seeking leave to extend the time within which the application to substitute Mr Samuel Ngari the 1st Respondent in the appeal ought to have been made.
51. From the foregoing, the Committee has been actively pursuing the various applications in the Court of Appeal in addition to pursuing the appeal and cross appeal filed in Civil Appeal No 18 of 2018 which came up for hearing on 18th October 2023 wherein the Appeal was marked as abated.
52. In addition to the applications filed by the Committee, the Board also filed an application in Court of Appeal Civil Application E114 of 2021 dated 14th April 2021 seeking to revive Civil Appeal Number 18 of 2018. This application is pending hearing at the Court of Appeal.
53. The 2nd and 3rd Respondents submit that it is not correct as alleged by the applicant that there has been delay in settlement of the decree for over 5 years. The Committee has been exercising its rights within the hierarchy of the Courts and has been seeking indulgence in the Court of Appeal with the latest appearance in the Court on 18th October 2023.
54. Without prejudice to the foregoing, they submit that the Committee has not received any demand for payment of the decretal sum or any decree or certificate of Order against government from the applicant and no evidence of such demand or certificate of order against the government has been produced before this court.
55. The 2nd and 3rd Respondents’ are not aware of the alleged Certificate of taxation awarding the applicant the sum of Kshs 1,799,275.00 as costs in Nairobi ELC 8 of 2018 as no Certificate of Costs has been produced or served on the Committee.
56. The Respondents further submit that the Committee operates within the provisions of the National Government Constituency Development Fund Act, 2015(The Act) and operates within the budgetary allocations from the Board.
57. Pursuant to Section 28(1)(1) of the Act, the Committee prepares and submits its annual budgets and proposals to the Board and the annual allocations are prioritized by the Committee. The budgetary proposals for the year 2023/2024 have already been submitted to the Board.
58. The decree herein is not part of the budgetary allocation for the year 2023/2024 considering that the Appeal process is not completed because there is an application by the Board which is pending hearing at the Court of Appeal. This application is therefore premature.
59. They submit that allowing this application and ordering payment of the decretal sum while the Application Civil Application No E114 Of 2021 to revive Civil Appeal 18 of 2018 is pending hearing in the Court of Appeal, will be prejudicial to the Respondents if the both the Application to revive the Appeal and the Appeal succeed.
60. If this application is granted before the completion of the appeal process, the Committee, and the people of Dagoretti South will suffer substantial loss considering that the sum of money involved is huge. The Committee only handles funds that belong to the public which are strictly budgeted on priorities to the benefit of the constituents of Dagoretti Constituency. Reliance is placed in Republic v County Government of Vihiga Ex parte Kenchuan Architects [2021] Eklr.
61. They urge the Court to exercise its discretion and dismiss the application dated 21st November 2023 as it is an abuse against the Court process and allow parties time to complete the Appeal process to avoid a miscarriage of justice to the Respondents and to the people of Dagoretti South Constituency.
ANALYSIS AND DETERMINATION:
62. Upon considering the arguments advanced by the parties I find the following to be the issues for determination:
a) Whether compliance with Order 53 of The Civil Procedure Rules is fatal or not.
b) Whether none compliance with Section 21 of Government Proceedings Act is mandatory.
c) Whether or not service of a certificate of the cost is necessary in proceedings like the one before the court.
Whether compliance with order 53 of The Civil Procedure Rules or one is fatal or not:
63. The applicant in his submissions confirms that the suit is supported by a supporting affidavit as opposed to a verifying that it. This does not sit well with their respondents. This omission offends Order 53 of The Civil Procedure Rules. The omission cannot be cured by Article 159 of the Constitution. The lapse is sufficient to render the entire application fatally defective as a whole and I so hold.
Whether none compliance with Section 21 of Government Proceedings Act is mandatory:
64. The Respondent have also challenged the Application on another front. Before an order of mandamus is issued, an Applicant must abide by the procedure in Section 21 of Government Proceedings Act which provides:
“(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.”
Section 21 (3) of the said Act on the other hand provides:
“If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:
Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.”
65. In the case of Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR while dealing with the said provisions expressed herself as follows:
“In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon Attorney General, section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues.”
66. The circumstances under which judicial review order of mandamus are issued were set out in Republic v Kenya National Examinations Council ex parte Gathenji & 8 Others Civil Appeal No 234 of 1996, where the Court of Appeal cited with approval, Halsbury’s Law of England, 4th Edn. Vol. 7 p. 111 para 89 thus:
“The order of mandamus is of most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."...These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”
67. According to the 2nd and 3rd Respondents, the Committee has not received any demand for payment of the decretal sum or any decree or certificate of Order against government from the applicant and no evidence of such demand or certificate of order against the government has been produced before this court.
68. The 2nd and 3rd Respondents’ are not aware of the alleged Certificate of taxation awarding the applicant the sum of Kshs 1,799,275.00 as costs in Nairobi ELC 8 of 2018 as no Certificate of Costs has been produced or served on the Committee.
69. Section 107 (1)of the Evidence Act provides that;
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
70. Section 109 the Evidence Act provides that:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
71. There ex parte applicant has failed to tender evidence to prove that the certificate of costs exist. All that the applicant said in relation to the the issue of costs is that the Defendants were served with the Party to Party Bill of Costs after the substitution.
72. The certificate of costs is a mandatory requirement in execution proceedings under the Government Proceedings Act. Failure to tender such critical evidence renders the entire application for the order of mandamus fatal and I so hold.
Disposition;
73. The Application is not supported by a Verifying affidavit or a Certificate of Costs.
74. The Applicant has not made out a case that it is entitled to the orders sought.
Order;
The application dated 21st November, 2023 is dismissed with costs.
Dated, Signed, and Delivered at Nairobi this 8th Day of April 2024.
………………………………………
J. CHIGITI (SC)
JUDGE