Republic v County Secretary Nyamira County Government & 3 others; Nyachiro t/a Nyachiro Nyagaka & Co Advocates (Exparte Applicant) [2023] KEHC 26968 (KLR)

Republic v County Secretary Nyamira County Government & 3 others; Nyachiro t/a Nyachiro Nyagaka & Co Advocates (Exparte Applicant) (Judicial Review E011 of 2023) [2023] KEHC 26968 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26968 (KLR)

Republic of Kenya

In the High Court at Nyamira

Judicial Review E011 of 2023

WA Okwany, J

December 14, 2023

Between

The Republic

Applicant

and

The County Secretary Nyamira County Government

1st Respondent

The County Executive Committee Member For Finance & Economic Planning Nyamira County Government

2nd Respondent

The Chief Officer Finance & Accounting Services Nyamira County Government

3rd Respondent

The County Government Of Nyamira

4th Respondent

and

Jones Nyachiro T/A Nyachiro Nyagaka & Co Advocates

Exparte Applicant

Ruling

1. The Ex-parte Applicant herein acted for the 4th Respondent, Nyamira County Government, after which it filed its bill of costs for taxation.

2. The costs were thereafter taxed and a Certificate of Costs issued. The Applicant filed the application dated 26th June 2023 seeking orders of mandamus to compel the Respondent to pay the taxed costs together with the accrued interests.

3. In a ruling delivered on 26th July, 2023, this court allowed the application dated 26th June 2023.

4. The Applicant filed another application dated 31st August 2023 seeking, inter alia, orders that the court summons the County Secretary Nyamira County Government, the County Executive Committee Member for Finance and Economic Planning Nyamira County Government and the Chief Officer Finance and Accounting services to show cause why they should not be cited for contempt of court for disobedience and disregard of the lawful mandamus orders issued on 26th July 2023.

5. When the application dated 31st August 2023 came up for hearing on 28th September 2023, parties recorded a Consent as follows: -1. JR NO. E011 OF 2023 to be marked as the lead file.2. The Applicant’s application dated 31st August 2023 in all the related files, to wit, JR E012/23, E013/2023 and E014/2023 be compromised in the following terms: -a.The total outstanding sum in all the 4 files as per Certificate of Costs, all dated 4th February 2022 is Kshs. 22,556,945. 50. b.A sum of Kshs. 17 million be paid to the Applicant on or before 15th October 2023. c.The balance of Kshs. 5,556,945. 50 to be paid on or before 30th January 2024. d.The interest running from 4th February 2022 to 28th September 2023 to be tabulated by the court’s Deputy Registrar within 7 days from today’s date and the arising sum thereto to be furnished to the parties herein and the same to be paid on or before 30th January 2024. 3.The interest shall accrue upon default of clause (2) above.4. In the event of default of any instalment, the entire sum plus interest shall become due and payable and execution to issue by way of summons to the Accounting Officer Finance and Accounting Services, Nyamira County Government.5. That upon payment of the sums above on their due dates, this matter shall be marked as settled.6. Each party shall bear their costs of the Miscellaneous Applications and the Judicial Review.7. This matter be mentioned on 23rd October 2023 to confirm compliance with clause (2) (b) and (d).

6. When the matter came up for mention on 23rd October 2023, Mr. Nyachiro, Learned Counsel for the Applicant, informed the court that the Respondents had not complied with Clause 2 (b) of the Consent recorded on 31st August 2023 as the sum of Kshs. 17 million was not been paid to the Applicant on or before 18th October 2023. He urged this court to issue summons to the Respondents’ accounting officers to show cause why they should not be cited for contempt of court. Mr. Nyachiro however, conceded that the sum of Kshs. 16,542,812. 75 was on the morning of 23rd October 2023 sent to his account. He noted that the sum was paid less a balance of Kshs. 457,987. 25.

7. In a rejoinder, Mr. Nyagarama, Learned Counsel for the Respondents submitted that the Respondents had complied with the terms of the Consent by paying Kshs. 17 million to the Applicant which amount was less the taxes due. He explained that the delay in making the payment was occasioned by the delay by the exchequer in releasing the funds. He urged the court to retain the terms of the Consent of 28th September 2023.

8. The court directed the Chief Accounting Officer of Nyamira County Government to file a comprehensive affidavit to explain the reason(s) for the delay in making the payments before a fair determination could be made on whether or not to retain the terms of the Consent.

9. I have perused the Replying Affidavit sworn by the County Chief Officer, Accounting Services Mr. Dominic Burare who states that upon recording the Consent, his office triggered the payment process by preparing all the requisite financial documents that were subjected to various payments stages. He adds that despite finalizing all the internal processes in good time, there was a delay in the generation of a purchase order on the IFMIS platform. He further states that the payment request was transmitted to external bodies including the Controller of Budget and the Central Bank of Kenya for the requisite approvals. He attached copies of documents requesting for the payments from the Controller of Budget as annexures marked “DBI” A – C to the Affidavit.

10. He further stated that despite the IFMIS delay, the Respondent paid the Applicant a sum of Kshs. 17,735,363 on 19th October 2023.

11. The Applicant, on its part, filed the Further Affidavit of Mr. Jones Nyachiro Advocate who observed that the Respondents did not attach any documents to show that they initiated the payment process on time. According to Mr. Nyachiro, the delay was caused by the Respondents who initiated the payment process on 16th October 2023 after the lapse of the 15 days agreed upon in the consent.

12. It was the Applicant’s case that the Respondents had not come to court with clean hands. He urged the court to find that the Respondents had breached the terms of the Consent and to order them to comply with Clause 3 and 4 of the said Consent.

13. I have carefully considered the averments made in the parties’ respective affidavits and the rival submissions by Counsel. It was not disputed that the Respondents did not comply with the timelines set for the payments through the Consent order recorded on 28th September 2023. According to the said order, the first payment of Kshs. 17 million was to be made on or before 15th October 2023.

14. The documents that the Respondents presented before this court reveal that even though the request for payments was sent to the Controller of Budget on 9th October 2023, the said payment was made on 23rd October 2023.

15. My finding is that since the request for payment was sent at least 6 days before the lapse of payment deadline of 15th October 2023, the Respondents cannot be held solely responsible for the delay in making the payment. It is to be noted that the County Governments do not have funds of their own but rely on the Exchequer for all their payments. This is not to say that the court has overlooked the Applicant’s position that there was a delay, on the part of the Respondents, in initiating the payment process.

16. My considered view is that there has been substantive compliance with the terms of the Consent order and that the explanation given for the delay is plausible. The Respondents are however cautioned to ensure strict adherence to the timelines set in the consent order for the remaining payments so as to avoid a similar scenario where the court is bogged down with numerous applications for contempt. In conclusion, the application is declined. Mention on 13th March 2024.

17. It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT NYAMIRA THIS 14TH DAY OF DECEMBER, 2023. W. A. OKWANYJUDGE