Republic v Nairobi City County & 3 others; Musyoki Mogaka & Company Advocates (Exparte) [2022] KEHC 18080 (KLR)

Republic v Nairobi City County & 3 others; Musyoki Mogaka & Company Advocates (Exparte) (Application E004 of 2022) [2022] KEHC 18080 (KLR) (Judicial Review) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 18080 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E004 of 2022

J Ngaah, J

November 11, 2022

Between

Republic

Applicant

and

Nairobi City County

1st Respondent

Nairobi City County Treasury

2nd Respondent

Nairobi City County Chief Finance Officer

3rd Respondent

Committee Member In Charge of Finance

4th Respondent

and

Musyoki Mogaka & Company Advocates

Exparte

Ruling

1The applicant’s application is a motion dated March 23, 2022. It is brought under sections 8 and 9 of the Law Reform Act, cap. 26 and Order 53 Rule 3(1) of the Civil Procedure Rules. There is only one main prayer for the order of mandamus and it is phrased as follows:That a mandamus order does issue compelling the respondents to pay the applicant the sum of Kshs. 137,550, 243. 20 plus compound interest at the rate of 14% per annum from February 25, 2021 until payment in full.”

2Mr. Stephen M, Mogaka, swore the verifying affidavit in support of the motion.

3According to the Mr. Mogaka, the amount of Kshs. 137,550, 243. 20 he is seeking from the respondents is his legal fees as taxed in an advocate-client bill of costs he filed in this court’s Miscellaneous Application No. E026 of 2021. He later obtained a judgment and extracted a decree for this sum in the same suit.

4As far as service of the decree and the certificate of order against the government is concerned, the applicant has sworn as follows:7. That despite a valid judgment by a court of competent jurisdiction, a decree, certificate of order against the Government and numerous reminders to the respondents to settle the decretal sum plus accrued interest, the respondents have failed, refused and or neglected to settle the decretal sum plus accrued interest to the detriment of the applicant. (addressed hereto and marked SMM6 and SMM7 is a copy of the applicants’ letters dated December 21, 2021 and January 10, 2022 addressed to the 1st respondent informing it of the decretal sum and accrued amounts.”

5The respondent filed grounds of objection dated January 27, 2022. It has been contended in those grounds, inter alia, that neither the decree nor the certificate of order was served upon the respondents or their advocates.

6This turns out to be this sole ground upon which the application is to be determined. I say so because if the respondents were served with the decree and certificate of order against the government, the applicant would be entitled to the order of mandamus but if they were not, the application would fail.

7The legal basis for service of the certificate of order against the government is section 21 of the Government Proceedings Act, cap. 40; its states as follows:2Satisfaction of orders against the Government1(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.(2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.(3)If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.(4)Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.(5)This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbirtation in which a county government is a party.

8According to subsection 5 of section 21, this particular provision applies to County Governments as much as it applies to satisfaction of orders against the national government, of course with such modifications as may be necessary.

9Under subsection (3), the accounting officer of the government department in question, in the case of the national government, is obliged to pay the amount specified in the order. In such a case, it is sufficient that the Attorney General was served with the certificate of order (see subsection (2)). In the case of a County Government, I would suppose that a person in charge of the County Government’s legal affairs or the person in charge of finance or one who would ordinarily be under obligation to settle orders against the County Government particularly where such orders relate to payment of money would be the appropriate person to be served.

10In the instant case, the applicant has named the County Government itself and its treasury as being responsible for the settlement of the order against the Government. Others named are County Chief Finance Officer and the Committee Member in Charge of Finance.

11I am not sure that all these parties would be responsible to settle the order but assuming they are, it is important in an application such as the instant one that they are aware of the certificate of order against government or the decree that binds them to settle the applicant’s costs before they are compelled to do so by an order of mandamus.

12In this application I have not seen any evidence of service of the decree or the order against government upon any of these officers. In a further affidavit which Mr. Mogaka swore after the question of service was raised by the respondents, Mr Mogaka deposed that:the consent order, the decree and the certificate of order against the Government were served upon Koceyo & Company advocates who are counsel for the respondents.”

13In the initial verifying affidavit that was filed in support of the summons for leave Mr. Mogaka had sworn that:7. That despite a valid judgment by a court of competent jurisdiction, a decree, certificate of order against the Government and numerous reminders to the respondents to settle the decretal sum plus accrued interest, the respondents have failed, refused and or neglected to settle the decretal sum plus accrued interest to the detriment of the applicant. (addressed hereto and marked SMM6 and SMM7 is a copy of the applicants’ letters dated December 21, 2021 and January 10, 2022 addressed to the 1st respondent informing it of the decretal sum and accrued amounts.”

14Neither of these depositions demonstrate that the respondents against whom the order of mandamus is sought were served with the certificate of order against government or the decree or that the relevant department of their County Government was served with either or both of these documents.

15A copy of a computer screen shot of what appears to be correspondence between the applicant’s and the respondents’ firm of advocates has been exhibited on Mr. Mogaka’s affidavit purportedly in proof of the fact of service.

16Apart from the screen shot being barely legible, there is nothing in it that suggests that the subject of the correspondence was the documents in issue or that they were served as alleged or at all.

17But even if it was to be assumed that the respondents’ advocates were served, that service would not be enough to guarantee the applicant the order of mandamus against the respondents.

18It is worth reiterating that in order for a public officer to be compelled to perform a particular duty attached to his office, it must be demonstrated that, unless it is a public duty expressly provided in the law, he has been made aware of the particular task that he is obliged to perform and that he has either neglected, ignored or refused to perform it.

19In this case, it must be proved that the officers who have been sued as being responsible to pay the applicant are aware of the existence of the decree and the certificate of order against government. The applicant has, regrettably, not discharged this burden. In the circumstances, I decline to grant the application. However, since the decree remains unsettled, the applicant is at liberty to file a fresh application. For the same reason I will not make any order as to costs. It is so ordered.

Signed dated, and delivered on 11 November 2022Ngaah JairusJUDGE1|JR. E004 OF 2022: JUDGMENT