Republic v Principal Secretary, Ministry of Defence; Waithaka (Exparte) [2023] KEHC 26460 (KLR)

Republic v Principal Secretary, Ministry of Defence; Waithaka (Exparte) (Application 276 of 2015) [2023] KEHC 26460 (KLR) (Judicial Review) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26460 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application 276 of 2015

J Ngaah, J

December 8, 2023

Between

Republic

Applicant

and

Principal Secretary, Ministry Of Defence

Respondent

and

George Kariuki Waithaka

Exparte

Ruling

1. By a ruling delivered by this Honourable Court (Nyamweya, J., As she then was) on 4 February 2019, the respondent was adjudged to be in contempt of court. He was then to be sentenced on a future date.

2. But by a motion dated 24 July 2020, Ms. Mate, the learned counsel for the respondent, filed a motion seeking to stay the sentencing of the respondent which, at the time of filing of the application, had been set for 28 July 2020. In the same motion, the respondent also prayed that:“3. This honourable court be pleased to discharge, vacate and or set aside the ruling of honourable Lady Justice P. Nyamweya delivered on 4th February 2019 finding the respondent/applicant herein culpable of disobeying court orders and for contempt of court.”

4. On 29 September 2021, before this motion was heard, warrants of arrest were issued against the respondent so that he could be arrested and brought to court for sentencing. But before the warrants were executed, parties entered into a consent by way of a consent letter dated 17 June 2022. The consent was in the following terms:“1. By consent, the ex parte applicant be paid Kshs. 3,858,529. 59 in full and final settlement of his claims herein;2. The payment of the 1st instalment totaling Kshs. 2,000,000 be remitted to the ex parte applicant through his advocates, by the end of the month of August 2022;3. The payment of the 2nd and last instalment totaling Kshs. 1,858,529. 59 be remitted to the ex parte applicant, through his advocates, by the end of the month of December 2022;4. The sentencing order against Saitoti Torome be stayed in the meantime pending compliance.”

5. The consent was adopted as the order of this Honourable Court on 21 November 2022. On 14 December 2022, parties appeared before me and Ms. Goro, the learned counsel for the respondent, informed the court that the sum of Kshs. 2,000,000/= had been paid but that there was a balance of Kshs. 1. 800,000/= outstanding. She, therefore, sought for a further mention date in March 2023 to confirm payment of the balance.

6. On 3 May 2023, Ms. Goro informed the court that the 2nd instalment had been paid and, therefore, the consent order had been fully complied with.

7. Dr. Kamau Kuria, the learned counsel for the applicant, disputed this assertion and insisted that the amount had not been paid. Beyond disputing payment of the second instalment, the learned counsel for the applicant went further and filed a motion seeking to review the consent order. This is the motion dated 4 May 2023 and it is the application which is the subject of this ruling. The applicant prays as follows:“1. That this Honourable Court be pleased to review and set aside orders number 1to3 of the said consent order made on 21 November 2022 in this suit.2. That the sentencing of Saitoti Torome do (sic) proceed.3. That the costs of this application be provided for.”

8. The application is supported by the affidavit sworn by the applicant.

9. The affidavit, however, does not say more than what is on record save to add that the amount of Kshs. 2,000,000, apparently, the first instalment, was paid on 15 February 2023 and that the applicant now wants to be paid the principal amount and interest accruing from 2015 to date.

10. Mr. Patrick Mariru, the Principal Secretary and accounting officer in the Ministry of Defence has sworn a replying affidavit opposing the application. I gather from the depositions made by Mr. Mariru that the entire sum due to the applicant has been paid and in proof thereof, he has exhibited to his affidavit copies of Real Time Gross Settlement (RTGS) receipts showing that the two instalments were remitted to the office of the Attorney General for onward transmission to the applicant or his advocates.

11. He has also acknowledged that there was some delay in payment to the extent that the timelines for payment specified in the consent order were not strictly adhered to. The delays were attributed to procedures for payment by government ministries.

12. According to Mr. Mariru, satisfaction of decrees is deemed by Parliament as an expenditure and for that reason, the expenditure must be justified in law and against funds specifically earmarked for that particular purpose.

13. For this reason, after the consent order was entered into, the Ministry of Defence had to seek authority from the Attorney General to settle the claim. Once the Attorney General approved the payment, the National Treasury had to authorise the payment. The Treasury had to confirm that the Ministry had sufficient funds to settle the claim. It is only after the Ministry of Defence received the two approvals that it transferred the money to the Attorney General to pay the applicant.

14. To be precise, the authority from the Attorney General was received on 1 September 2022 and the approval by the Treasury was granted on 26 September 2022.

15. On 8 November 2022, the first instalment of Kshs. 2,000,000/= was paid and on 2 May 2023, the second instalment of Kshs. 1,853,529. 55 was paid.

16. Of the two instalments, the applicant’s counsel has admitted receiving the first instalment of Kshs. 2,000,000/= but he has categorically denied receiving the second instalment.

17. Now, whether the second instalment has been paid or not is a question of evidence and all that the Attorney General should have done in view of the applicant’s counsel’s denial, was to provide proof that the money has been paid. Without this proof, the court is entitled to proceed on the presumption that the amount has not been paid and, therefore, the consent order has not been complied with fully.

18. The question that then follows is, whether non-compliance with the consent order should lead to a review of that order. My straight answer to this question is in the negative. It is in the negative because I understand the order to say that the execution of the warrant of arrest was held in abeyance pending the payment of the amounts stated in the order. If the amounts were not paid, then the order suspending the arrest of Mr Saitoti Torome was to be automatically discharged. In which event, he was to be arrested for sentencing. There would be no need to review the order because the order is, in a way, self-executing.

19. That said, I note that the warrant of arrest is specific to Saitoti Torome who is no longer serving as the accounting officer in the Ministry of defence. The question I have held to agonise over is of what value would he be to the applicant if he was arrested and sentenced? If he is no longer in the ministry and, perhaps, out of government, would he be in a position to purge his contempt and pay the outstanding sum?

20. The answer is, of course, in the negative. The person who should be held accountable is the person who is in the office at the material time. And there is no doubt as to who this person is because he has sworn a replying affidavit in which he has come out clearly and described himself as “the principal secretary and the accounting officer in the Ministry of Defence”.

21. Under section 21 (3) of the Government Proceedings Act cap 40, he has the responsibility of settling any monetary decrees, amongst other public duties placed upon his office.

22. Section 43 and 45 of the Interpretation and General Provisions Act cap 2 shed some light on who to go for in the event of default in performance of public duties for which this office is responsible.

23. According to section 43:where a written law confers power or imposes a duty on the holder of an office, then, unless a contrary intention appears, the power may be exercised and the duty shall be performed by the person for the time being holding that office.

24. And to the particular question whether the warrant of arrest would apply to Saitoti Torome who is no longer in the Ministry of Defence as the accounting officer, section 45 of the act provides an answer. It states as follows:In this Act and in any other written law, instrument, warrant or process of any kind, a reference to a person holding an office shall include a reference to any person for the time being lawfully discharging the functions of that office.

25. What this means as far as the instant application is concerned, it would be futile arresting and sentencing Saitoti Torome. And to the extent that this is the person that the applicant seeks to be sentenced, the application is incompetent. It is hereby dismissed but I make no orders as to costs.

SIGNED, DATED AND DELIVERED VIA VIDEO LINK ON 8 DECEMBER 2023NGAAH JAIRUSJUDGE