WYCLIFFE ODARI MWAVALI VS COUNTY SECRETARY NAROK COUNTY GOVERNMENT AND COUNTY SECRETARY NAROK COUNTY GOVERNMENT AND 9 Others

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

JUDICIAL REVIEW NO. E002 OF 2023

(CORAM: HON. CHARLES M. KARIUKI – J)

REPUBLIC...............…………………………………………. APPLICANT

(C/O MUIGAI KEMEI & ASSOCIATES ADVOCATES)

-VERSUS-

COUNTY SECRETARY,

NAROK COUNTY GOVERNMENT........………………. 1^ST RESPONDENT/APPLICANT

AROK COUNTY GOVERNMENT……………………..2^ND RESPONDENT/APPLICANT

COUNTY OFFICER OF FINANCE & ECONOMIC PLANNING,

NAROK COUNTY GOVERNMENT……..……………3^RD RESPONDENT/APPLICANT

NAROK COUNTY GOVERNMENT………….……4^TH RESPONDENT/APPLICANT

WYCLIFFE ONDARI MWAVALI…………….EX-PARTE APPLICANT/RESPONDENT

RULING

19/03/2025

1. The Applicants herein filed an application dated 07/11/2024 seeking the following orders.
2. Spent.
3. Spent.
4. That this honourable court be pleased to find and declare the mode of execution of decree by the ex-parte applicant/respondent and in particular warrants of attachment and notice of proclamation issued by SANJOMU AUCTIONEERS (ex-parte applicant’s auctioneer) dated 24/10/2024 is illegal and irregular hence null and void.
5. That the costs of this application be awarded to the applicants.
6. In response and opposition to the application, the ex parte applicant/respondent filed a response dated 14/11/2024.

Brief background

1. Judgment was delivered on 16/01/2023 against the applicants in Narok HCCC No. 2 Of 2021 Wycliffe Mwavali Ondari Vs County Council of Narok & Kesike Ole Watuni.
2. The ex parte applicant filed an application dated 20/07/2023 seeking an order of mandamus to be issued compelling the applicants to satisfy the decretal sum of Kshs. 25,898,707/= arising from the judgment.
3. Vide a judgment delivered on 29/04/2024, the ex parte applicant’s application was dismissed since he had not obtained a certificate of order against the government requiring payment of the decretal sum.
4. The court ordered that a certificate of order be drawn as per the prescribed form and the ex parte applicant was granted liberty to seek an order of mandamus against the applicants.
5. On 04/10/2024, the ex-parte applicant made an application for execution of a decree and was issued with a warrant of attachment to SANJOMU auctioneers (ex-parte applicant’s auctioneers) to execute against the applicants.
6. On 24/10/2024, the ex-parte applicant served the applicants with warrants requiring the applicants to pay the sum of Kshs. 30,896,883.55 within a period of 10 days.
7. The ex parte applicant through its agents SANJOMU auctioneers attached the applicants' goods and property motor vehicle registration numbers 33CG 343A FAW WHELLER, 33CG 344A FAW 22-WHEELER AND 33CG 347A FAW plus the assorted computer tables and chairs.

Directions of the court.

1. The motion was canvassed by way of written submissions.

The Ex Parte Applicant/Respondent’s Submissions

1. The ex parte applicant submitted that the order was served upon the county secretary narok county, the 1^st respondent/applicant on 05/07/2024. The order was also served upon the county speaker narok county and the county attorney narok on 09/07/2024. The ex parte applicant contends therefore that the county government of narok was therefore aware of the orders of this court. The county government of Narok was served with a certificate of order against the government on 17/07/2024.
2. The ex-parte applicant submitted that he served the certificate of order against the government as required by law. He also served warrants of execution giving the respondents 10 days to pay. After the expiry of the 10-day notice, he attached the assets of the Narok County government in execution.
3. The ex-parte applicant submitted that the applicants failed or refused to pay kshs. 5,000,000/= by 09/01/2025 therefore the attached goods were not released to them.
4. The ex parte applicant submitted that warrants were freshly issued on 09/01/2024 and auctioneers Sonjomu are expected to proceed with the execution.
5. The ex-parte applicant submitted that the court of appeal did not criticize the mode of execution adopted by the ex-parte applicant but stated that execution should proceed if the applicants failed to comply with the said orders.

The Respondents/applicants’ Submissions.

1. The respondents/applicants submitted that the execution of the court’s decree and attachment of the applicants' movable assets and goods against the government is unprocedural and illegal. The respondents/applicants contend that the attachment violates the previous judgment of the court and the laid down procedures on execution against the government. The respondents/applicants therefore prayed that this court order the unconditional release of the applicants' property held by the ex-parte applicant's auctioneers. the respondents/applicants relied on section 21 of the Government Proceedings Act, Article 176 of the constitution of Kenya, and Five Star Agencies Ltd Vs National Land Commission & Another CA No. E290 of 2023 & 328 Of 2023.

ANALYSIS AND DETERMINATION.

1. This court considered the Pleadings and the submission by the respective parties.

Issues

1.   The main issue for determination: -
2. Whether the mode of execution of the decree by the ex parte applicant/respondent is illegal and irregular hence null and void.
   • 1. Whether the mode of execution of the decree by the ex parte applicant/respondent is illegal and irregular hence null and void.
3. Vide judgment delivered on 29/04/2024, this court (Hon. F. Gikonyo M.) directed that.

“34) mandamus is one of the methods of execution against government. However, it is appropriate, and in line with the submissions by the respondent, that the ex-parte applicant obtains and serves certificate of order upon the respondent first requiring payment of the decretal sum. and, if the decretal sum is not paid as per the law, the ex parte applicant is at liberty to seek for an order of mandamus.

35) to avoid any further delay, the court hereby issues a certificate of order, to be drawn in accordance with the prescribed form.

1. The court of appeal in its ruling delivered on 15/11/2024 issued the following orders.
2. The applicants shall file their record of appeal within 30 days from the date hereof.
3. The applicants pay the respondents a sum of Kshs. 5 million within 45 days from date hereof.
4. Upon payment as aforesaid, the attached goods shall be released to the applicant.
5. In the event the applicants fail to comply with conditions a) and b) above, the application shall stand dismissed with costs and execution shall proceed.
6. The costs of the application shall abide by the outcome of the appeal
7. The application before this court is the mode of execution by the ex parte applicant. The ex parte applicant initiated execution by way of warrants of attachment against the applicants’ movable property.  The applicants contend that warrants of attachment against its movable property is contrary to the provisions of section 21 of the Government Proceedings Act. According to the applicants, the ex-parte applicant should have opted for other modes of execution besides the attachment of the applicant's movable property.
8. The manner of execution of decrees against the government was discussed in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza [2012] eKLR where Githua J stated 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 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.

1. Guided by the decision in the above-cited case, I find that the Respondent should have enforced the decree by way of an order of mandamus compelling the accounting officer in the relevant county government to pay the decretal amount since Section 21(4) of the Government Proceedings Act protects the Government from execution and attachment of its property/goods.
2. From the above findings, the respondent is at liberty to explore and proceed with any other mode of execution of the decree.
3. The court therefore declares the mode of execution of decree by the ex-parte applicant/respondent and in particular warrants of attachment and notice of proclamation issued by SANJOMU AUCTIONEERS (ex-parte applicant’s auctioneer) dated 24/10/2024 is illegal and irregular hence null and void.
4. Any goods/properties of the applicant by the respondent held by the auctioneers shall therefore be released to the applicant forthwith.
5. The costs of this Application shall abide the outcome of the appeal
6. Orders accordingly.

DATED, SIGNED, AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS …...DAY OF ………...2025

……………………………………

CHARLES KARIUKI

JUDGE