M/S Mecko Enterprises v The Principal Secretary, Ministry of Education,Ng'iya Girls High School,Attorney General,Secretary/Co-Ordinator, Economic Stimulus Programme & Cabinet Secretary, National Treasury [2017] KEHC 10087 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

MISC. APPLICATION NO. 445 OF 2013

M/S MECKO ENTERPRISES........…...........................APPLICANT

VERSUS

THE PRINCIPAL SECRETARY,

MINISTRY OF EDUCATION...............................1ST RESPONDENT

THE CHAIRMAN, BOARD OF GOVERNORS,

NG'IYA GIRLS HIGH SCHOOL..........................2ND RESPONDENT

ATTORNEY GENERAL.....................................3RD RESPONDENT

SECRETARY/CO-ORDINATOR,

ECONOMIC STIMULUS PROGRAMME ..............4TH RESPONDENT

CABINET SECRETARY, NATIONAL TREASURY.....5TH RESPONDENT

RULING

[1]The Applicant, Mecko Enterprises, is back before this Court with a Notice of Motion dated 9 November 2017. The application is expressed to have been filed pursuant to Articles 47(2) 158(1), 159(2)(b) and (c), 164, and 227(1) of the Constitution of Kenya, Section 48 of the Public Procurement and Disposal Act, 2005, Sections 10, 34, 35 and 39 of the Arbitration Act, No. 4 of 1995, Section 3(4)of theEvidence Act, Chapter 80of theLaws of Kenya and Sections 3, 3Aand3B of the Appellate Jurisdiction Act, Chapter 9 ofthe Laws of Kenya, Section 26(1) of the Civil Procedure Act, Chapter 21 of the Laws of Kenya; and Orders 51 and 53 of the Civil Procedure Rules, 2010for orders, inter alia, that:

[a] The Court be pleased to reconsider Prayer 5 in the Decree dated 19 March 2014; and to retain Prayer (3) and (4)      thereof:

[b]  That the Court be pleased to dismiss and/or strike out  paragraph 61 of the High Court Ruling dated 26 February 2014         in terms of res judicata;

[c]    That the Court be pleased to decree late payment of Kshs. 32,616,629. 80, and order that the same be payable by the       Respondents within 30 days with interest at the rate of 20. 5% till full payment.

[2] Again, the only issue between the parties herein, is the question whether the Applicant is entitled to interest for late payment, which has been worked out to be in the sum of Kshs. 32,616,629. 80as at the time of the filing of the instant application. The Order of19 March 2014arose from the decision ofKamau, J.dated26 February 2014. Much time and effort has been expended on a reconsideration of that decision and  decisions rendered by this Court thereon. The pertinent Rulings are dated30 June 2017and 3 November 2017. Quite apart from the fact that this Court is in no position to "...dismiss and/or strike out..." any portion of the Rulingof a Court of concurrent jurisdiction, as has been sought by the Plaintiff herein, the question of interest has been repeatedly ruled to be res judicata. Unless and until that conclusion is overturned on appeal, it is pointless for the Plaintiff to keep harping on about it. As matters stand, I would reiterate the previous decisions made herein and find that nothing has changed since those decisions were arrived at.

[3]In the result, I have no hesitation in holding that the Plaintiff's Notice of Motion dated 9 November 2017 is misconceived and the same is accordingly dismissed with costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF DECEMBER 2017

OLGA SEWE

JUDGE