The Republic VS THE COUNTY GOVT OF NYAMIRA AND THE COUNTY EXECUTIVE COMMITTEE MEMBER FOR FINANCE NYAMIRA COUNTY AND 1 Others

1. The Applicant in the Notice of Motion dated 18^th October 2023 seeks the following Orders: -
2. THAT the Honourable Court be pleased to grant an Order of Mandamus directing the Respondents to pay the decretal sum of Kenya Shillings Twenty-Four Million, Five Hundred and Ninety-Two Thousand, Three Hundred and Seventy-Two (Kshs. 24,592,372/=) together with interests thereon at court rates.
3. THAT the Honourable Court be pleased to grant an Order of Mandamus directing the Respondents to pay the Certificate of Stated Costs of Kenya Shillings Eight Hundred and Ten Thousand, Nine Hundred and Twenty-Five (Kshs. 810,925/=) together with interests thereon at court rates.
4. THAT such further and other orders that the Honourable Court may deem just and expedient to grant.
5. THAT costs of this Application be provided for.
6. The Application is supported by the Statement of Facts and the Applicant’s Affidavit wherein they aver that they filed a claim against the 1^st Respondent in Kericho ELRC E002 of 2021 seeking the recovery of unpaid salaries amounting to Kshs. 24,592,372/= together with costs and interests, which sum was awarded together with costs which were assessed at Kshs. 810,925/=. They state that the Respondents have failed, refused and/or neglected to pay the said sum despite numerous demands.
7. The Respondents opposed the Application through the Replying Affidavit of Mr. Erastus Orina, the County Attorney of Nyamira County who avers that he is aware of Judgment delivered on 10^th February 2022 in favour of the Applicant but that an appeal has been lodged against it before the Court of Appeal in Nakuru alongside an Application for Stay of Execution pending Appeal which was yet to be heard and determined by the said court. He avers that the Respondents will suffer substantial loss if the Applicant is allowed to execute while an appeal is still pending because the amount in question is colossal and had not been budgeted for in the present financial year. He adds that the sum in question is not readily available and that an execution will cripple the business of the county in providing services to the public. He also argued that the substratum of the appeal would dissipate and render it nugatory if the Court were to allow the present Application.
8. At the initial hearing of the Application, Mrs. Ligunya, learned Counsel for the Respondents, informed the Court that there was a pending Appeal before the Court of Appeal at Nakuru. She asked for more time in order to pursue an out-of-court settlement. During subsequent hearings, however, the Respondents’ said Counsel did not appear before the Court and Counsel for the Applicant informed this Court that the said settlement was not forthcoming.
9. This Court directed the parties to canvass the Application by way of written submissions.

The Applicant’s Submissions

1. The Applicant submitted that the factors to be considered in granting an order of mandamus were outlined in Republic vs. Principal Secretary, Ministry of Internal Security and Another ex-parte Schon Noorani & Another (2018) eKLR and stated that the Respondent owed them a public duty to pay the monies taxed by the court in Kericho ELRC E002 of 2021 according to Section 21 of the Government Proceedings Act.
2. It was submitted that Section 21 of the Government Proceedings Act provides for the procedure for executing orders against the government which the Applicant had complied with but that the Respondents did not honour their obligations despite numerous correspondences which remained unanswered. It was submitted that the Applicant has demonstrated that they were entitled to the orders sought and unless the Court intervened, the Respondent would continue to disobey the court orders which required them to settle the judgment debt.

The Respondents’ Submissions

1. The Respondents submitted that whilst an appeal did not constitute a stay of execution of the proceedings, courts were called upon to take cognizance of hierarchy of courts and consider the embarrassment that was likely to be occasioned in the event conflicting orders were to be issued. It was argued that granting the prayers in the present Application would render the Appeal before the Court of Appeal obsolete and that the Respondents will suffer substantial loss as there was a likelihood that the Applicant would be unable to refund the decretal amount should the appeal succeed. It was submitted that failure, by the Respondents, to satisfy the Court’s decree was not wilful or in disobedience to court orders but was by virtue of the meritorious appeal already filed before the Court of Appeal.
2. I have considered the instant Application together with the rival submissions of the parties. The main issue for my determination is whether the Application for an Order of Mandamus is merited.

Analysis and Determination

1. The principles governing the granting of an order of mandamus were explained in Republic vs. Kenya National Examinations Council ex parte Gathenji & Others, (1997) eKLR where the Court of Appeal rendered itself as follows: -

“The next issue we must deal with is this:  What is the scope and efficacy of an ORDER OF MANDAMUS? Once again we turn to HALSBURY’S LAW OF ENGLAND, 4^th Edition Volume 1 at page 111 FROM PARAGRAPH 89.  That learned treatise says:-

“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty.  Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”

At paragraph 90 headed “the mandate” it is stated:

“The order must command no more than the party against whom the application is made is legally bound to perform.  Where a general duty is imposed, a mandamus cannot require it to be done at once.  Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”

What do these principles mean?  They mean that an order of mandamus will compel 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….” (emphasis added).

1. Similarly, in Apotex Inc. vs. Canada (Attorney General), 1993 Can LII 3004 (F.C.A.), [1994] 1 F.C. 742 (C.A.), aff'd 1994 CanLII 47 (S.C.C.), [1994] 3 S.C.R. 1100 and Dragan vs. Canada (Minister of Citizenship and Immigration)

2003 FCT 211 (CanLII), [2003] 4 F.C. 189 (T.D.), aff’d 2003 FCA 233 (CanLII), 2003 FCA 233) Mativo J. (as he then was), outlined the principles as follows: -

“(i) There must be a public legal duty to act; 

  (ii) The duty must be owed to the Applicants; 

  (iii) There must be a clear right to the performance of that duty, meaning that:

a. The Applicants have satisfied all conditions precedent; and

b. There must have been:

i. A prior demand for performance;

ii. A reasonable time to comply with the demand, unless there was outright refusal; and

iii. An express refusal, or an implied refusal through unreasonable delay;

iv. No other adequate remedy is available to the Applicants;

v. The Order sought must be of some practical value or effect;

vi. There is no equitable bar to the relief sought;

vii. On a balance of convenience, mandamus should lie”

1. It was not disputed that judgment was entered in favour of the Applicant on 10^th February 2022 and a Decree extracted on 7^th March 2022. Section 21 of the Government Proceedings Act, Cap 40 states as follows: -
2. 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.

1. 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.
2. 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.

1. Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.
2. ___
3. My finding is that even though the above provisions do not refer to the county governments, they can be construed to refer to the government both at national and county level as in the present case. (See Republic vs. Attorney General & Another ex-parte Stephen Wanyee Roki [2016] eKLR).
4. In the present case, the Applicant extracted a Decree and subsequently, a Certificate of Costs was issued by the Taxing Master on 24^th November 2022. On 10^th November 2022 and 16^th January 2023, Counsel for the Applicant wrote to the County Attorney and Counsel for the Respondent respectively demanding payment of the decretal sum, which letters did not elicit any response from the Respondents. I find that the Applicant duly complied with the provisions of Section 21 of the Government Proceedings Act and that the 1^st and 2^nd were required to settle the judgment debt in favour of the Applicant.
5. I also note that while the impugned judgment was delivered on 10^th February 2022, the present Application was filed on 18^th November 2023. This Court is at a loss as to why the Respondents did not file their application for stay of execution before the ELRC at Kericho immediately they filed the Memorandum of Appeal. The inordinate delay in filing the stay of execution application lends credence to the Applicant’s argument that the Respondents are out to delay the Applicants’ realization of their fruits of his judgment.
6. Turning to the Respondent’s claim that they will suffer more prejudice if the Application is allowed because the Applicants will not be in a position to refund the decretal sum should they succeed, on appeal, I find that this is an argument that can only be advanced in the application for Stay of Execution before the Court of Appeal and not in this matter.
7. The Respondents also contended that the amounts sought were colossal and unavailable as they had not been budgeted for in the financial year which means that the county affairs would be crippled if payments were to be made. I find that this argument does not hold any water in law because the debt in question did not accrue in the current financial year and that the Respondents have had ample time to budget for the payment in the subsequent years. This court notes that at some point during these proceedings, the Respondents asked for time to settle the debt  which, to my mind, was an indication that they had acknowledged their indebtedness but opted not to settle it.
8. It is my finding that the Applicant is holder of a valid judgment debt whose settlement should be enforced by this court. I am guided by the decision in Republic vs. Town Clerk of Webuye County Council & Another HCCC 448 of 2006 wherein it was held that: -

“...a decree holder’s right to enjoy fruits of his judgment must not be thwarted. When faced with such a scenario the Court should adopt an interpretation that favours enforcement and as far as possible secures accrued rights. My reasoning is underpinned by the values of the Constitution particularized in Article 10, the obligation of the court to do justice to the parties and to do so without delay under Article 159 (2) (a) & (b) and the Applicant’s right of access to justice protected under Article 48 of the Constitution.”

1. Having regard to the findings and observations that I have made in this ruling, I find that the instant application is merited and I therefore allow it in the following terms: -
2. An Order of Mandamus is hereby issued directing the Respondents to pay the Applicants the decretal sum of Kshs. 24,592,372/= together with interests thereon at court rates till payment in full.
3. An Order of Mandamus is hereby issued directing the Respondents to pay the Applicants the taxed costs of Kshs. 810,925/= together with interests thereon at court rates till payment in full.
4. The Respondents shall pay to the Applicant the costs of this Application.
5. It is so ordered.

Ruling dated, signed and delivered at Nyamira virtually via Microsoft Teams this 4^th day of July 2024.

In the Presence of: -

Mukonyi for the Applicant

N/A for the Respondent

C/AA – Anita/Georgina