1. The Application that forms the subject of this judgment is the one dated 11th February 2035 wherein the Applicant seeks the following orders;
a) That an order of mandamus be and is hereby issued to compel the Respondents herein to pay the ex parte Applicant the sum of Kenya Shillings One Million, Six Hundred and Thirty-Three Thousand, Eight Hundred and Two and One Cents (Kshs. 1,633,802.01/=) being the amount taxed in the Advocates/ client Bill of costs dated 24th February, 2020 arising out of Nairobi Constitutional Petition No. 398 of 2015-Delmonte Kenya Limited -vs- The County Government of Murang'a & Two Others and Certificate of Order against the Government issued on the 20th June, 2024.
b) That the Honourable court be pleased to order the Respondents to pay costs of this Application and further interest on the arnount of Kshs. 1,633,802.01/= with effect from 22nd February, 2022 until payment in full.
c) That this Honourable court do issue summons to the Respondents to appear before the court and explain nonpayment of the sum of Kenya Shillings One Million, Six Hundred and Thirty-Three Thousand, Eight Hundred and Two and One Cents (Kshs. 1,633,802.01/=) being the amount taxed in the Advocates/client Bill of costs dated 24th February, 2020 arising out of Nairobi Constitutional Petition No. 398 of 2015-Delmonte Kenya Limited -vs- The County Government of Murang'a & Two Others and Certificate of Order against the Government issued on the 20th June, 2024 together with cost of this Application and interest herein at court rate with effect from 22nd February, 2022 until payment in full.
d) That this Honourable court be pleased to give such further orders and directions as it may deem fit and just to grant.
e) That the costs of this Application be paid by the Respondents.
2. The Applicants argue that on 22nd February, 2022, the Advocates/ client Bill of costs dated 24th February, 2020 arising out of Nairobi Constitutional Petition No. 398 of 2015 Delmonte Kenya Limited -vs- The County Government of Murang'a & Two Others was taxed by the Deputy Registrar at Kshs. 1,633,802.01/ in line with the certificate of taxation on the 17th August, 2023 for the total sum of Kshs. 1,633,802.01/=.
3. The Certificate of Order against the Government was issued on the 20th June, 2024 and the County Government of Kiambu was on the 8th July, 2024 served with the said Certificate of Order against it vide the forwarding letter dated 27th June, 2024.
4. The amount of Kshs. 1,633,802.01/= continues to attract interest at court rates of 12% from 22nd February, 2022 until payment in full.
5. The applicant argues that the Respondents should be compelled to pay the amount owed of Kshs. 1,633,802.01/ = together with the further accrued interest from 22nd February, 2022 and the costs of this Application and any other proceedings in relation to payment of the amount demanded.
6. The Respondents are the authorised, accounting and Chief Executive Officers of the County Government of Kiambu respectively and they are under a public duty to ensure that the County Government of Kiambu fulfils its legal obligations.
7. In opposing the Application the Respondents argue that the delay in remitting the decretal amount as appearing in the attendant Certificate of Taxation and Certificate of Order Against Government dated 17th August, 2023 and 20th June, 2024 to the tune of Kenya Shillings One Million Six Hundred and Thirty-Three Thousand Eight Hundred and Two, Cents One Only (Kshs. 1,633,802.01/=) has been occasioned by lack of sufficient funds.
8. They argue that in the Report by the Office of Controller of Budget entitled, "County Governments Budget Implementation Review Report,” it was reported that counties that had the lowest proportion of their local revenue collection to their respective annual revenue targets included Kiambu and Bungoma Counties, each attaining 20 per cent.
9. It is further their case that this being a pending bill, by dint of having being generated in the year 2023 when the Certificate of Taxation was issued, it is prudent to bring to the attention of this Honourable Court that as a County, we are currently grappling with an issue of pending bills to the tune of Kenya Shillings Five Billion, Six Hundred and Thirty Million (Kshs. 5,630,000/=) with quite a number of accrued payments due and owing from the financial year 2019/2020 and earlier years whereupon priority is given in order of the year when the pending bill was generated.
10. According to them, the payment of any pending bill has to undergo a rigorous procedure that begins with the elaborate verification exercise to ensure that it conforms with the financial prudency measures as outlined by the underlying legal provisions (including but not limited to the Constitution of Kenya, 2010 and the Public Finance Management Act, Cap. 412) right through the examination, authorization and ultimately the requisition of funds from the Controller of Budget.
Analysis and determination;
The issues for determination are:
a) Whether the Application has merit.
b) Who shall bear the costs.
Whether the Application has merit.
11. The Respondents don’t deny that they owe the Applicant the amounts claimed. The Respondents’ argument that the treasury has not assigned Funds is neither here nor there.
12. Decrees of this court must be settled. Failure to do so amounts to impunity which this court cannot countenance.
13. In the case of Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka [2019] eKLR held as follows on the issue of budgetary allocation;
“The defence of non-allocation of funds by Parliament was also raised by the Respondent in the present Application in his replying affidavit. Odunga J. in his ruling of 12th February 2018 extensively dealt with the defence as follows:
“As regards lack of budgetary allocation, Githua, J in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR 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.” [Emphasis mine].
26. I associate with the said decision and it is therefore my view that settlement of decretal sum by the Government whether National or County does not necessarily depend on the availability of funds. This position was appreciated by this Court in Wachira Nderitu, Ngugi & Co. Advocates vs. The Town Clerk, City Council of Nairobi Miscellaneous Application No. 354 of 2012 in which this Court pronounced itself as follows:
“I have however considered the other issues raised by the Respondent with respect to its debt portfolio as against its financial resources. It is neither in the interest of this Court nor that of the ex parte Applicant that the Respondent should be brought to its knees. The Court appreciates and it is a matter of judicial notice that most of the local authorities are reeling under the weight of the debts accrued by their predecessors and that they are trying to find their footing in the current governmental set up. Accordingly, I am satisfied based on the material on record that the Respondent ought to be given some breathing space to arrange its finances and settle the sum due herein.”
27. In my view a party facing financial constraints is at liberty to move the Court for appropriate orders which would enable it to settle its obligations while staying afloat. That however, is not a reason for one to evade its responsibility to settle such obligations. In other words, financial difficulty is only a consideration when it comes to determining the mode of settlement of a decree but is not a basis for declining to compel the Respondent to settle a sum decreed by the Court to be due from it. That objection therefore fails.”
48. Non-allocation of funds by Parliament is not an acceptable defence or justifiable excuse for non-payment of decretal sums ordered to be paid by Government officials, in the absence of any evidence of any attempts made by the responsible Government official to commence the process of such allocation. In the present case, this is particularly relevant given that the present contempt of Court proceedings commenced in April 2017, and the Respondent did not indicate what steps if any, have been taken since then to effect payment of the monies due to the Applicant.”
14. This court is in agreement with the above findings. The Respondent’s argument that they lacks budgetary allocation is not a valid reason for failing to comply with court orders and I so hold.
15. In South Bucks District Council vs. Flanagan [2002] EWCA Civ. 690 [2002] WLR 2601 at [18] that:
“Legitimate expectation involves notions of fairness and unless the person making the representation has actual or ostensible authority to speak on behalf of the public body, there is no reason why the recipient of the representation should be allowed to hold the public body to the terms of the representation. He might subjectively have acquired the expectation, but it would not be a legitimate one, that is to say it would not be one to which he was entitled.”
16. When the Applicant secured a judgment, extracted a Certificate of Order and a Certificate of Costs and the time for lodging an appeal lapsed, then this means that the Applicant had a legitimate expectation that the Respondents would settle the claim during its next budgetary cycle at the minimum. Such is the case before me. The Applicant has a legitimate expectation that the Respondents would settle his claim.
17. The decree holder remains clinging on a decree that is yet to translate into funds. This has to come to an end.
Costs;
18. In determining the issue of costs, this court is guided by the case of Party of Independent Candidates of Kenya versus Mutula Kilonzo a 2 others HC EP No. 6 of 2013, the court stated as follows on the issue of costs:
"It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial judge is given discretion but this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, is a rule which should not be departed from without the demonstration of good grounds for doing so. "
19. The Respondents shall shoulder the costs.
Disposition:
20. The Applicant has proven that that the Application has merit.
Order:
a) An order of mandamus is hereby issued to compel the Respondents herein to pay the ex parte Applicant the sum of Kenya Shillings One Million, Six Hundred and Thirty-Three Thousand, Eight Hundred and Two and One Cents (Kshs. 1,633,802.01/=) being the amount taxed in the Advocates/ client Bill of costs dated 24th February, 2020 arising out of Nairobi Constitutional Petition No. 398 of 2015-Delmonte Kenya Limited -vs- The County Government of Murang'a & Two Others and Certificate of Order against the Government issued on the 20th June, 2024.
b) An order that the Respondents to pay costs of this Application and further interest on the amount of Kshs. 1,633,802.01/= with effect from 22nd February, 2022 until payment in full is hereby issued.
c) The prayer that this Honourable court do issue summons to the Respondents to appear before the court and explain nonpayment of the sum of Kenya Shillings One Million, Six Hundred and Thirty-Three Thousand, Eight Hundred and Two and One Cents (Kshs. 1,633,802.01/=) being the amount taxed in the Advocates/client Bill of costs dated 24th February, 2020 arising out of Nairobi Constitutional Petition No. 398 of 2015-Delmonte Kenya Limited -vs- The County Government of Murang'a & Two Others and Certificate of Order against the Government issued on the 20th June, 2024 together with cost of this Application and interest herein at court rate with effect from 22nd February, 2022 until payment in full is premature and the same is declined.
d) Costs of this Application be paid by the Respondents.
a) That an order of mandamus be and is hereby issued to compel the Respondents herein to pay the ex parte Applicant the sum of Kenya Shillings One Million, Six Hundred and Thirty-Three Thousand, Eight Hundred and Two and One Cents (Kshs. 1,633,802.01/=) being the amount taxed in the Advocates/ client Bill of costs dated 24th February, 2020 arising out of Nairobi Constitutional Petition No. 398 of 2015-Delmonte Kenya Limited -vs- The County Government of Murang'a & Two Others and Certificate of Order against the Government issued on the 20th June, 2024.
b) That the Honourable court be pleased to order the Respondents to pay costs of this Application and further interest on the arnount of Kshs. 1,633,802.01/= with effect from 22nd February, 2022 until payment in full.
c) That this Honourable court do issue summons to the Respondents to appear before the court and explain nonpayment of the sum of Kenya Shillings One Million, Six Hundred and Thirty-Three Thousand, Eight Hundred and Two and One Cents (Kshs. 1,633,802.01/=) being the amount taxed in the Advocates/client Bill of costs dated 24th February, 2020 arising out of Nairobi Constitutional Petition No. 398 of 2015-Delmonte Kenya Limited -vs- The County Government of Murang'a & Two Others and Certificate of Order against the Government issued on the 20th June, 2024 together with cost of this Application and interest herein at court rate with effect from 22nd February, 2022 until payment in full.
d) That this Honourable court be pleased to give such further orders and directions as it may deem fit and just to grant.
e) That the costs of this Application be paid by the Respondents.
2. The Applicants argue that on 22nd February, 2022, the Advocates/ client Bill of costs dated 24th February, 2020 arising out of Nairobi Constitutional Petition No. 398 of 2015 Delmonte Kenya Limited -vs- The County Government of Murang'a & Two Others was taxed by the Deputy Registrar at Kshs. 1,633,802.01/ in line with the certificate of taxation on the 17th August, 2023 for the total sum of Kshs. 1,633,802.01/=.
3. The Certificate of Order against the Government was issued on the 20th June, 2024 and the County Government of Kiambu was on the 8th July, 2024 served with the said Certificate of Order against it vide the forwarding letter dated 27th June, 2024.
4. The amount of Kshs. 1,633,802.01/= continues to attract interest at court rates of 12% from 22nd February, 2022 until payment in full.
5. The applicant argues that the Respondents should be compelled to pay the amount owed of Kshs. 1,633,802.01/ = together with the further accrued interest from 22nd February, 2022 and the costs of this Application and any other proceedings in relation to payment of the amount demanded.
6. The Respondents are the authorised, accounting and Chief Executive Officers of the County Government of Kiambu respectively and they are under a public duty to ensure that the County Government of Kiambu fulfils its legal obligations.
7. In opposing the Application the Respondents argue that the delay in remitting the decretal amount as appearing in the attendant Certificate of Taxation and Certificate of Order Against Government dated 17th August, 2023 and 20th June, 2024 to the tune of Kenya Shillings One Million Six Hundred and Thirty-Three Thousand Eight Hundred and Two, Cents One Only (Kshs. 1,633,802.01/=) has been occasioned by lack of sufficient funds.
8. They argue that in the Report by the Office of Controller of Budget entitled, "County Governments Budget Implementation Review Report,” it was reported that counties that had the lowest proportion of their local revenue collection to their respective annual revenue targets included Kiambu and Bungoma Counties, each attaining 20 per cent.
9. It is further their case that this being a pending bill, by dint of having being generated in the year 2023 when the Certificate of Taxation was issued, it is prudent to bring to the attention of this Honourable Court that as a County, we are currently grappling with an issue of pending bills to the tune of Kenya Shillings Five Billion, Six Hundred and Thirty Million (Kshs. 5,630,000/=) with quite a number of accrued payments due and owing from the financial year 2019/2020 and earlier years whereupon priority is given in order of the year when the pending bill was generated.
10. According to them, the payment of any pending bill has to undergo a rigorous procedure that begins with the elaborate verification exercise to ensure that it conforms with the financial prudency measures as outlined by the underlying legal provisions (including but not limited to the Constitution of Kenya, 2010 and the Public Finance Management Act, Cap. 412) right through the examination, authorization and ultimately the requisition of funds from the Controller of Budget.
Analysis and determination;
The issues for determination are:
a) Whether the Application has merit.
b) Who shall bear the costs.
Whether the Application has merit.
11. The Respondents don’t deny that they owe the Applicant the amounts claimed. The Respondents’ argument that the treasury has not assigned Funds is neither here nor there.
12. Decrees of this court must be settled. Failure to do so amounts to impunity which this court cannot countenance.
13. In the case of Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka [2019] eKLR held as follows on the issue of budgetary allocation;
“The defence of non-allocation of funds by Parliament was also raised by the Respondent in the present Application in his replying affidavit. Odunga J. in his ruling of 12th February 2018 extensively dealt with the defence as follows:
“As regards lack of budgetary allocation, Githua, J in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR 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.” [Emphasis mine].
26. I associate with the said decision and it is therefore my view that settlement of decretal sum by the Government whether National or County does not necessarily depend on the availability of funds. This position was appreciated by this Court in Wachira Nderitu, Ngugi & Co. Advocates vs. The Town Clerk, City Council of Nairobi Miscellaneous Application No. 354 of 2012 in which this Court pronounced itself as follows:
“I have however considered the other issues raised by the Respondent with respect to its debt portfolio as against its financial resources. It is neither in the interest of this Court nor that of the ex parte Applicant that the Respondent should be brought to its knees. The Court appreciates and it is a matter of judicial notice that most of the local authorities are reeling under the weight of the debts accrued by their predecessors and that they are trying to find their footing in the current governmental set up. Accordingly, I am satisfied based on the material on record that the Respondent ought to be given some breathing space to arrange its finances and settle the sum due herein.”
27. In my view a party facing financial constraints is at liberty to move the Court for appropriate orders which would enable it to settle its obligations while staying afloat. That however, is not a reason for one to evade its responsibility to settle such obligations. In other words, financial difficulty is only a consideration when it comes to determining the mode of settlement of a decree but is not a basis for declining to compel the Respondent to settle a sum decreed by the Court to be due from it. That objection therefore fails.”
48. Non-allocation of funds by Parliament is not an acceptable defence or justifiable excuse for non-payment of decretal sums ordered to be paid by Government officials, in the absence of any evidence of any attempts made by the responsible Government official to commence the process of such allocation. In the present case, this is particularly relevant given that the present contempt of Court proceedings commenced in April 2017, and the Respondent did not indicate what steps if any, have been taken since then to effect payment of the monies due to the Applicant.”
14. This court is in agreement with the above findings. The Respondent’s argument that they lacks budgetary allocation is not a valid reason for failing to comply with court orders and I so hold.
15. In South Bucks District Council vs. Flanagan [2002] EWCA Civ. 690 [2002] WLR 2601 at [18] that:
“Legitimate expectation involves notions of fairness and unless the person making the representation has actual or ostensible authority to speak on behalf of the public body, there is no reason why the recipient of the representation should be allowed to hold the public body to the terms of the representation. He might subjectively have acquired the expectation, but it would not be a legitimate one, that is to say it would not be one to which he was entitled.”
16. When the Applicant secured a judgment, extracted a Certificate of Order and a Certificate of Costs and the time for lodging an appeal lapsed, then this means that the Applicant had a legitimate expectation that the Respondents would settle the claim during its next budgetary cycle at the minimum. Such is the case before me. The Applicant has a legitimate expectation that the Respondents would settle his claim.
17. The decree holder remains clinging on a decree that is yet to translate into funds. This has to come to an end.
Costs;
18. In determining the issue of costs, this court is guided by the case of Party of Independent Candidates of Kenya versus Mutula Kilonzo a 2 others HC EP No. 6 of 2013, the court stated as follows on the issue of costs:
"It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial judge is given discretion but this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, is a rule which should not be departed from without the demonstration of good grounds for doing so. "
19. The Respondents shall shoulder the costs.
Disposition:
20. The Applicant has proven that that the Application has merit.
Order:
a) An order of mandamus is hereby issued to compel the Respondents herein to pay the ex parte Applicant the sum of Kenya Shillings One Million, Six Hundred and Thirty-Three Thousand, Eight Hundred and Two and One Cents (Kshs. 1,633,802.01/=) being the amount taxed in the Advocates/ client Bill of costs dated 24th February, 2020 arising out of Nairobi Constitutional Petition No. 398 of 2015-Delmonte Kenya Limited -vs- The County Government of Murang'a & Two Others and Certificate of Order against the Government issued on the 20th June, 2024.
b) An order that the Respondents to pay costs of this Application and further interest on the amount of Kshs. 1,633,802.01/= with effect from 22nd February, 2022 until payment in full is hereby issued.
c) The prayer that this Honourable court do issue summons to the Respondents to appear before the court and explain nonpayment of the sum of Kenya Shillings One Million, Six Hundred and Thirty-Three Thousand, Eight Hundred and Two and One Cents (Kshs. 1,633,802.01/=) being the amount taxed in the Advocates/client Bill of costs dated 24th February, 2020 arising out of Nairobi Constitutional Petition No. 398 of 2015-Delmonte Kenya Limited -vs- The County Government of Murang'a & Two Others and Certificate of Order against the Government issued on the 20th June, 2024 together with cost of this Application and interest herein at court rate with effect from 22nd February, 2022 until payment in full is premature and the same is declined.
d) Costs of this Application be paid by the Respondents.