Republic v Homa Bay County Assembly Service Board & 2 others; Japat General Services (Exparte Applicant) [2023] KEHC 25627 (KLR)

Republic v Homa Bay County Assembly Service Board & 2 others; Japat General Services (Exparte Applicant) (Judicial Review Miscellaneous Application E011 of 2022) [2023] KEHC 25627 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25627 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Judicial Review Miscellaneous Application E011 of 2022

KW Kiarie, J

November 21, 2023

Between

Republic

Applicant

and

Homa Bay County Assembly Service Board

1st Respondent

Homa Bay County Assembly

2nd Respondent

The Clerk, County Assembly Of Homa Bay

3rd Respondent

and

Japat General Services

Exparte Applicant

Ruling

1. Japat General Services the ex parte applicant, moved the court by way of an amended Notice of Motion dated the 7th day of February 2023 under Order 53 Rules 3 & 4 of the Civil Procedure Rules, for the following orders:a.An order of judicial review in the nature of mandamus to issue against the respondents compelling them to pay the ex parte Applicant the sum of Kshs 4,200,000/- being the decretal amount together with interest thereon at 14% per annum until payment in full and Kshs 198,731. 25/- being the certified costs in Homabay CMCC No E027 of 2022 between Japat General Services vs Homabay County Assembly & another.b.The costs of this application be provided for.

2. The application was premised on the following grounds:a.The ex-parte applicant brought a breach of contract suit against the respondents herein on the 18th day of February 2022 in Homabay CMCC No E027 of 2022 between Japat General Services vs Homabay County Assembly & another.b.Judgment was entered in favour of the ex-parte applicant herein on the 9th day of March 2022 where the respondents were ordered to pay the applicant Kshs 4,200,000/- with costs, and interest on the principal amount at the rate of 14% per annum until payment in full.c.The ex-parte applicant subsequently filed their party-to-party bill of costs dated 22nd March, 2022 and the same was taxed on 12th May 2022 at Kshs 198,731. 25/-.d.The ex parte applicant extracted the decree and subsequently a Certificate of Order against the respondents issued on the 21st day of September, 2022. The two documents were served on the respondents.e.The ex parte applicant has made several reminders to the respondents to settle the amounts but the reminders have elicited no response.f.The ex parte applicant is desperate and apprehensive that the respondents have no intention at all of making this payment.g.The respondents have a constitutional and legal obligation to settle the judgment debt and have a public duty to comply with all orders of the court and failure and/or refusal to pay is a gross abdication of that duty and is injurious to the public interest.h.It is only fair and just that the respondents pay the amount to the ex-parte applicant who feels that they are being denied justice through the delay on the part of the respondents.i.The actions and omissions of the respondents are a violation of the ex-parte applicant’s rights which is enforceable by this court through these proceedings.j.It is in the best interest of justice that the reliefs sought in the instant application be granted.

3. The respondents opposed the application through the clerk of the County Assembly who stated:a.They have never been with any court judgment and/or decree, pleading, or notices emanating from these proceedings either on the date when the proceedings were commenced, or subsequently thereafter.b.That this matter proceeded as an undefended cause and judgment was entered in favour of the plaintiff/respondent on the 4th day of August 2022 in the sum of Kshs 4,785,000/-.c.The respondents have since filed an application under certificate at the trial magistrate’s court to have the ex parte judgment set aside and the matter herein be heard and determined on merit.d.It will be highly prejudiced and against the tenets of the constitution for the ex parte applicant’s application to be allowed as the respondents will be deemed to have been condemned unheard.

4. As the issue of non-service of the suit in the trial court was not addressed, and there is a pending application in the trial court, it would not be wise to conclusively address the orders that the ex parte applicant has requested. If the application is decided in her favor, the ex parte applicant can move the court.

5. Each party to meet its costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 21ST DAY OF NOVEMBER 2023KIARIE WAWERU KIARIEJUDGE