Norgen Enterprises Limited v County Secretary, County Government Of Vihiga & County Government Of Vihiga [2022] KEHC 1372 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

JUDICIAL REVIEW MISC. APPL. NO. 14 OF 2019

IN THE MATTER OF AN APPLICATION BY NORGEN ENTERPRISES LTD

AND

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY WAY OF MANDAMUS

AND

IN THE MATTER OF SECTIONS 2, 103, 147 & 148 OF THE PUBLIC FINANCE MANAGEMENT ACT, 2012

AND

IN THE MATTER OF SECTION 44 & 45 OF THE COUNTY GOVERNMENTS ACT, 2012

AND

IN THE MATTER OF GOVERNMENT PROCEEDINGS ACT, CHAPTER 40, LAW OF KENYA

NORGEN ENTERPRISES LIMITED........................................................................APPLICANT

VERSUS

THE COUNTY SECRETARY,

COUNTY GOVERNMENT OF VIHIGA.........................................................1ST RESPONDENT

THE COUNTY EXECUTIVE MEMBER

FOR FINANCE, COUNTY GOVERNMENT OF VIHIGA..........................2ND RESPONDENT

THE COUNTY GOVERNMENT OF VIHIGA..............................................3RD RESPONDENT

RULING

The application dated 26th March 2021 is for the review of the order made on 15th October 2020.

1. In the ruling dated 15th October 2020 the Court granted an Order of Mandamus directed at the County Secretary, County Government of Vihiga; the County Executive Member for Finance, County Government of Vihiga; and the County Government of Vihiga to pay to the Applicant the sum of Kshs 11,975,250/= together with interest at Court rates of 14% per annum from the date of filing suit, together with Kshs 334,855. 90 in respect of the costs of the suit in Kisumu CMCC No. 68 of 2017.

2. It has now been drawn to my attention that although the Applicant had asked the Court to award it the costs of the application dated 7th November 2019, the Court did not make a determination on that issue.  It is for that reason that the Applicant sought a review of the Order, so as to incorporate an order for costs.

3. Although the Respondents were duly served, they did not answer to the application.  Effectively, therefore, the application was unopposed.

4. Secondly, and in any event, costs ordinarily follow the event.

5. I find no reason in law, or in fact which could cause the Court to deviate from the ordinary course.

6. Therefore, I grant the orders sought, thus reviewing the order dated 15th October 2020; and grant to the Applicant the costs of the application dated 7th November 2019.

7. However, as the Respondents had no role in the oversight that led to the filing of the application dated 26th March 2021, it would be unfair to condemn them to pay the costs for it.

8. Accordingly, each party will meet his or her own costs of the application dated 26th March 2021.

DATED, SIGNED and DELIVERED at KISUMU

This10thday of March2022

FRED A. OCHIENG

JUDGE