The Republic VS THE COUNTY SECRECTARY NYAMIRA COUNTY GOVERNMENT AND THE COUNTY EXECUTIVE COMMITTEE MEMBER FOR FINANCE AND ECONOMIC PLANNING NYAMIRA COUNTY GOVERNMENT AND 2 Others

1. This ruling is in respect to two applications; namely, the Application dated 13^th March, 2024 (the 1^st Application) wherein the Applicant seeks orders to stay the execution of the consent dated 28^th September 2023 and for a full account, by the ex parte Applicant, of the sum of Kshs. 8, 562,092/= remitted to them as party and party costs awarded to the 4^th Respondent; and, the the Application dated 19^th March, 2024 (the 2nd Application) wherein the ex parte Applicant seeks to have the consent dated 28^th September, 2023 reviewed with regards to the Applicants judicial review costs and that the Respondents be ordered to reimburse the applicant, within 14 days, the sums paid to KRA in respect of use of their personal KRA Pin as opposed to the PIN of Nyachiro Nyagaka & Company Advocates. There is also an alternative prayer that the sums paid be deducted or set off.

The 1^st Application

1. The 1^st Application is supported by the Affidavit of the 4^th Respondent’s acting Chief Officer, Finance Asenath Kenyanya Maobe and is premised on the following grounds: -
2. That there have emerged compelling facts disclosing substantial and serious grounds of material non-disclosure bordering on fraud which, as a matter of justice, fairness and great public interest, warrant urgent stay of further execution in enforcement of the consent herein dated 28.09.2023 and adopted by this Honourable Court on even date;
3. That the emerging facts and grounds as pleaded hereinbelow raise substantive issues that have a direct implication and bearing on whether the 4th Respondent/Applicant (County Government of Nyamira) herein, is legally indebted and obligated to make any further payments to the Ex-parte Applicant whether on the strength of the consent dated 28.09.2023 or otherwise in as far as the instant and predicate proceedings are concerned;
4. That parties herein recorded a consent on 28.09.2023 which consent was adopted by this Honourable Court on even date;
5. That pursuant to clause 2(b) the said consent the Ex-parte Applicant was to be paid Kshs 17,000,000/= (Say Kenya Shillings Seventeen Million Only) on or before 15.10.2023 the wholesome of which has already been remitted to the Ex-parte Applicant;
6. That pursuant to clause 2(c) the said consent, the Ex-parte Applicant was to be paid a total of Kshs. 10,820,232.60/= (Say Kenya Shillings Ten Million, Eight Hundred and Twenty Thousand, Two Hundred and Thirty-Two Shillings and Sixty Cents Only) on or before 30.01.2024;
7. That however upon perusal of the series of files and proceedings, on which the instant judicial review and enforcement proceedings are predicated, it has come to the attention of the County Government of Nyamira that;
   1. Part of the series concerned by the instant proceedings and the subject consent herein is Nyamira HCCC No. 2 of 2017 that gave rise to Nyamira HC Misc. Civil Application No. E002 of 2022 and subsequently Nyamira HCJR No. E012 o/ 2023 being part of the series concerned in the proceedings herein;
   2. The 4th Respondent/Applicant (County Government of Nyamira) herein was, in the said matter of Nyamira HCCC No. 2 of 2017 awarded party-and-party costs;
   3. The party-and-party costs in aforesaid matter of Nyamira HCCC No. 2 of 2017 were on 17.11.2019 assessed at Kshs. 8.526,092.79 (Say Kenya Shillings Eight Million, Five Hundred and Twenty-Six Thousand, Ninety-Two Shillings and Seventy-Nine Cents Only) and the attendant Certificate of Costs was on 13.11.2019 issued;
   4.   The Ex-parte Applicant, then acting for the 4th Respondent/Applicant (County Government of Nyamira) herein took out execution proceedings for realization of the said party-and-party of costs of Kshs. 8.526,092.79 in the said matter, vide Nyamira HCCC No. 2 of 2017;
   5. The 4th Respondent/Applicant (County Government of Nyamira) herein has since learnt that the said amount of Kshs. 8,526.092.79 was wholesomely remitted to the Ex­ parte applicant in their capacity as the then Advocates for the 4th Respondent/Applicant (County Government of Nyamira) in the said matter said matter, vide Nyamira HCCC No. 2 of 2017;
   6. The Ex-parte Applicant despite receipt of the aforesaid monies, has never disclosed, and up to this moment refuses to disclose, to the 4th Respondent/Applicant (County Government of Nyamira) the fact of them receiving the said monies;
   7. The Ex--parte Applicant concealed, held onto and continues to hold the said party-and­ party costs together with all interest accrued thereon and has never remitted or otherwise accounted for a single shilling of the said party-and-party costs to the 4th Respondent/Applicant (County Government of Nyamira);
   8. The Ex-parte applicant has blatantly ignored and adamantly refused to respond to correspondence from the 4th Respondent/Applicant (County Government of Nyamira) herein seeking disclosure and an account of the aforesaid party-and-party costs as were remitted to the Ex-parte applicant together with all accrued interest;
   9. That no legal justification exists, neither has any explanation been proffered by the Ex parte Applicant, as for why they have, on one hand concealed, held onto and continue to hold the 4th Respondents said party-and-party costs in Nyamira HCCC No. 2 of 2017 together with all interest accrued thereon, while on the other hand purporting to press for further payments herein;
8. That receipt, concealment and failure to account for the 4th Respondent\'s said party­ and-party costs in Nyamira HCCC No. 2 of 2017 is a fact that is admitted from the blatant refusal of the Ex parte applicant to respond to correspondence from the 4th Respondent/ Applicant (County Government of Nyamira) herein seeking disclosure and an account of the aforesaid party-and-party costs as were remitted to the Ex-parte applicant together with all accrued interest.
9. That the 4th Respondent\'s said party-and-party costs in Nyamira HCCC No. 2 of 2017, together with all accrued interest, as remitted and held by the Ex parte applicant are properly operative in law towards being taken into account in determining respective   parties\'   standing   cross-liabilities   herein   and   whether   the   4^th Respondent/Applicant (County Government of Nyamira) herein is legally indebted and obligated to make any further payments. to the Ex-parte Applicant whether on the strength of the consent dated 28.09.2023 or otherwise in as far as the instant and predicate proceedings are concerned;
10. That the Ex parte Applicant\'s receipt, concealment and failure to account for the 4th Respondent said party-and-party costs in Nyamira HCCC No: 2 of 2017 constitutes serious material non-disclosure bordering on fraud and the same goes to the very bona fides and integrity of the subject consent herein dated 28.09.2023;
11. That the subject consent in question herein, being one touching on enforcement and discharge of monetary liabilities herein, it is only fair and just that there be full disclosure of all attendant and determinant facts· before proceeding with further execution thereof;
12. That the instant Application has been made in absolute good faith and the same only seeks full disclosure of facts that have a direct bearing on both parties\' cross-liabilities herein; the application\'s orders are merited ex debito justitiae;
13. That this Honourable Court has statutory as well as inherent jurisdiction to adjudge and grant the prayers sought herein;
14. The exparte applicant opposed the Application through his Replying Affidavit dated 19^th March, 2024 wherein he concedes that he indeed entered into a consent on 28^th September 2023 for the payment of costs in this matter and other related cases which consent was adopted by the court and that it is imperative that a background thereto be given to the court.
15. He states that the local authority provident fund was sued by the then Nyamira Town Council (The predecessor of Nyamira County Government). Local Authorities Provident Fund subsequently filed a counterclaim seeking to be paid a sum of Kshs. 474,589,235.07/=
16. He states that whilst the legal process was on-going they prepared their interim fee note and forwarded it to the County Government for payment which fees was not paid.
17. He states that the County Government constituted a committee to look through the legal fees payable to them and which committee they attended and made their presentation on the fees payable. He adds that after the protracted trial, the suit was withdrawn and the counterclaim dismissed with costs.
18. He states that the party and party Bill of costs was taxed and a warrant of attachment issued against the defendant. He contends that it was agreed that costs would be held as lien for their fees in the various matters that were subject of the committee meeting and that the said agreement was communicated to the Director of Legal Affairs Office.
19. He states that the committee so constituted by the applicant did not succeed in verifying their fees as claimed and it was communicated to the County Director of legal affairs that they shall file their bill of costs for determination by the court so as to resolve the impasse on the sums payable to them.
20. He further states that after taxation the County Government declined to pay hence the various Judicial review applications and that prior to the matter coming up for trial on 28^th September 2023 of the respondent\'s application for contempt they held several meetings with the representatives of the County Attorney and agreed that in consideration to of all matters;
21. That the sums due to them would be paid in instalments.
22. That in consideration of their retention of the sums previously paid to them as party and party costs. They would waive the costs of the Judicial Review applications for the consolidated matters.
23. That the sum payable in instalment would not attract any further interest unless in default on the part of the applicant.
24. He also states that they therefore recorded a consent in court with the legitimate expectation that each party would honour their part of the bargain. He avers that the applicant did not pay the agreed sums thereby precipitating their decision to move to court for enforcement of the consent by way of summons to show cause. He contends that the Applicant did did not initially raise the issues that they are raising herein and that they stopped the payments after making the 1st instalment.
25. He states that if the 4th Respondent desired to change the agreement they should have sought for review of the consent and that this application is therefore frivolous and should be dismissed.
26. The 2nd Application seeks to have the consent dated 28^th September, 2023 reviewed with regards to the Applicants judicial review costs and the Respondents be ordered to reimburse the applicant within 14 days the sums paid to KRA in respect of usage of their personal KRA Pin as opposed to the PIN of Nyachiro Nyagaka & Company Advocates. In the alternative the sums paid be deducted or set off.

2^nd Application

1. The Application dated 19^th March, 2024 is supported by the ex parte Applicants’ affidavit and is premised on the following grounds: -
2. That the court taxed costs due to M/S Nyachiro Nyagaka & CO. Advocates various matters as consolidated herein.
3. That the respondent ignored to pay the same.
4. That the applicant filed a judicial review application that resulted in issuance of summons to show cause.
5. That the respondent in a meeting held on 27/0912023 agreed on various parameters that caused the applicant, on that legitimate expectation, to waive its costs in the Judicial review Matters.
6. That the respondent has since reneged in full performance of the contract and made material demands whose net effect it to fundamentally alter the spirit of the consent.
7. That the respondent made representation to the applicant which in view of the unfolding event.
8. That after payment of the 1st instalment the respondent used a personal pin in declaration to KRA.
9. That the respondents have since ref used to rectify the KRA PIN for the applicant.
10. That we raised in court the issue and the respondent promised to rectify but have to date not rectified.
11. That unless the honourable court does issue an order, they will not comply in rectifying the KRA pin number.
12. That it is prudent that the court allow our application to review the consent order to enable conclusion of this matter.
13. The 4^th Respondent opposed the Application through the Replying Affidavit of its Chief officer, Finance who avers that the Application is defective in prayers and unmerited in substance as it has been lodged as a knee-jerk reaction to the County Government\'s application seeking full disclosure and account for monies remitted to the Applicant.
14. She states that exparte Applicant should first address the issues of full disclosure raised in the 1^st Application before asking the court to interfere with the consent of 28^th September 2023as the said issues have a direct implication and bearing on whether the 4th Respondent/Applicant (County Government of Nyamira) herein is legally indebted and obligated to make any further payments to the Ex-parte Applicant whether on the strength of the consent otherwise.
15. She states that the Applicant\'s prayers (No. \'c\') that this Honourable Court reviews the consent of 28t September 2023 as proposed is defective ab initio as this court was not a party to the said consent and that courts cannot unilaterally remake the substance of bi-partite consents is a matter of exclusive competence of parties thereto. She adds that a consent can only be vacated on contract vitiating grounds.
16. She states that the Applicant\'s prayers (No. \'d\') that this Honourable Court Orders reimbursement/appropriation by set off of some tax monies withheld by the Kenya Revenue Authority is defective. She further states that the said prayer for summary reimbursement of tax moneys is a substantive relief, conclusive and decretal in nature that cannot, as a matter of legal principle, be granted on the strength and basis of an interlocutory application.
17. She states that procedures for tax assessment, remittance, complaints, re­ assessment and tax refund are exclusively and competently governed by the provisions of the Tax Procedures Act Cap. 469B Laws of Kenya, particularly Section 47. She adds that if the Applicant is genuinely aggrieved with any tax assessment decision - whether erroneous or on account of some other ground, they should follow the procedures set under the Tax Procedures Act.
18. She states that the firm of Nyachiro Nyagaka & Co. Advocates having acted as Advocates for the County Government of Nyamira in the predicate matters giving rise to the instant proceedings have overriding and non-negotiable fiduciary obligations of good faith, prudence, disclosure and full account of all monies rendered to them in such matters for the benefit of the County Government of Nyamira in their capacities as the latter\'s Advocates.
19. She states that the Respondent is clearly avoiding disclosing whether, when and how much party-and-party costs were remitted to them. She avers that the County Government does not have any record or knowledge of any agreement with Nyachiro Nyagaka & Co. Advocates regarding the withholding of party-and­ party costs in consideration of any matter and has never negotiated for or consented to the withholding of any party-and-party costs with the said firm of advocates.
20. She states that it is dishonest and absurd for the Applicant to argue that it was agreed that the party-and-party costs could be withheld in consideration for their waiver of costs of the judicial review proceedings when the Applicant\' s purported judicial review proceedings costs have never been taxed and computed in the first place so as to inform any such consideration.
21. She further states that the Applicant\'s claim that the County Government erroneously remitted his personal KRA Pin Number when remitting payments is misguided and ignorant of basic workings of government public fund remittances. She explains that the only detail and element keyed in when electronically remitting public funds is the recipient\'s Integrated Financial Management Information System (IFMIS) Number only - not the recipient\'s KRA Pin.
22. The ex parte Applicant filed a further affidavit in response to the Replying Affidavit in which he acknowledged the sums paid to them as costs and stated that he was aware that the said sums were held by the law firm as it was agreed that the sums would be kept in the advocate-client account pending the task force resolution.
23. He states that he has no objection to the set off as long as the consent recorded in court is reviewed to the extent of their being allowed to file a party and party bill of costs in the Judicial Review as the waiver of costs in the judicial review matters was premised on the representations of the respondent in respect of the party and party costs which understanding has now been negated.
24. Both applications were canvassed by way of written submissions which I have considered.
25. The crux of both applications and the issues that arise therefrom are whether the court should order a stay the execution and review of the consent dated 28^th September 2023 and whether the Respondents should be ordered to reimburse, to the applicant within 14 days, the sums paid to KRA in respect to the use of their personal KRA Pin as opposed to the PIN of Nyachiro Nyagaka & Company Advocates.
26. On the first issue on whether this court should grant an order for stay of execution of the consent dated 28^th September 2023, Order 42, Rule 6 outlines the conditions for the granting of stay of execution. The Order requires applicants to demonstrate that:

They will suffer substantial loss if the stay is not granted.

The application for stay was made without unreasonable delay.

They are willing to provide security for costs.

1. A consent order signed by parties can be postponed or set aside under specific circumstances. While consent orders typically reflect mutual agreement and are treated with respect by the courts, there are recognized grounds under which such orders can be challenged such as misrepresentation, duress, lack of capacity, unconscionability, or public policy violations. This is the position that was stated in Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others [2014] eKLR where the court noted that;

“Consent orders are generally binding unless proven otherwise.  Parties may challenge consent orders on grounds such as misrepresentation or public policy.”

1. In the instant case, the Respondents have raised an issue of stay of execution of the subject consent. I however note that the Application does not meet the conditions set under Order 46 Rule 6 of the CPR for the granting of orders for stay of execution. It is also trite that consent orders bind the parties and that courts are not permitted to tamper with the said consents unless it is shown that they were obtained through misrepresentation, duress, lack of capacity, unconscionability, or public policy violations. I am therefore not persuaded that the Applicant, in the 1^st Application, has made out a case for the stay of the execution of the said consent.
2. On the second issue of review of the consent, the Respondent’s counsel submitted that this Court was not a party to the said consent. My take is that a Court, in an adversarial judication, can only either enforce or otherwise vacate a consent and not unilaterally vary a bi-partite consent. I am not satisfied that there was any disclosure of any form of misrepresentation or any other vitiating factor or any sufficient grounds to warrant review of the consent.
3. The ex-parte applicant’s case was that his party and party Bill of costs was taxed and a warrant of attachment issued against the 4th Respondent after which it was agreed that the costs be held as lien of their fees in the various matters that were subject of the committee meeting.
4. Section 45 of the Advocates Act, provides that an advocate has a lien on any papers or money of a client in their possession for costs, fees, or other charges owed. This means that an advocate can retain possession of a client\'s documents or funds until the fees owed are settled.
5. In Muriuki v. Karanja (2015) the Court of Appeal upheld the right of advocates to exercise a lien over clients\' funds. The court stated that retaining funds until the advocate’s fees are settled is lawful and within the rights conferred by the Advocates Act.
6. Similarly, in Ochieng v. B. M. Ochieng (2013) the court affirmed that advocates are entitled to withhold funds due to their clients if there are outstanding fees. The decision highlighted the importance of this practice in protecting the interests of advocates while providing a mechanism for clients to settle their debts.
7. While advocates have the right to hold a lien, they must also act ethically and responsibly. For instance, the advocate must inform the client about the unpaid fees and the intention to exercise the lien.
8. The advocate should also not withhold documents in a manner that causes undue harm to the client, especially if the client requires those documents for ongoing legal matters. It is therefore my finding that the Advocate was justified to withhold the party and party costs as lien for his costs. My finding is that the allegations of concealment, failure to account to the 4th Respondent for the said party-and-party costs, material non-disclosure bordering on fraud and lack of integrity are issues that the 4^th Respondent can pursue with the bodies mandated to deal with such matters being the Advocates Complaints Commission or the police for that matter.
9. On the issue of erroneous remittance of tax through the exparte Applicant’s KRA pin, I agree with the Respondents that matters of and procedures for tax assessment, remittance, complains, re­ assessment and tax refund are exclusively and competently governed by the provisions of the Tax Procedures Act Cap. 469B Laws of Kenya, particularly under section 47. My finding is that if indeed the Applicant is genuinely aggrieved with any tax decision whether erroneous or on account of some other ground, then he should go through the procedure set under the Tax Procedures Act.
10. In sum, I find that both the applications dated 13^th March 2024 and 19^th March 2024 are devoid of merit and are therefore dismiss them with no orders as to costs.
11. It is so ordered.

Ruling dated, signed and delivered virtually at Nyamira via Microsoft Teams this 3^rd day of October 2024.

In the Presence of: -

Maronga for the Respondents

N/A for Nyachiro

C/A – Anita