Republic v Principal Secretary, Ministry of Health & Attorney General Ex-parte Geoffrey Gatwai Mwangi [2018] KEHC 8567 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  202 OF 2017

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

AND

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL

REVIEWBY WAY OF MANDAMUS AGAINST THE PRINCIPAL

SECRETARY, MINISTRY OF HEALTH

AND

IN THE MATTER OF SECTION 8 OF THE LAW  REFORM  ACT, CHAPTER  26 OF

THE LAWS  OF KENYA  AND ORDER  53  OF THE CIVIL PROCEDURE  RULES  2010

AND

IN THE MATTER  OF SECTION 8 OF THE LAW REFORMS  ACT, CHAPTER  26  OF

THE LAWS  OF KENYA  AND ORDER 53 OF THE CIVIL PROCEDURE RULES  2010

BETWEEN

REPUBLIC.........................................................................................APPLICANT

VERSUS

THE PRINCIPAL SECRETARY, MINISTRY OF HEALTH...1ST RESPONDENT

THE ATTORNEY GENERAL.................................................2ND RESPONDENT

GEOFFREY GATWAI MWANGI............................................................EX-PARTE

JUDGMENT

1. On 22nd July 2015, the exparte applicant herein Geoffrey Gatwai Mwangi  received  judgment  in his favour  against  the Attorney General vide Kerugoya Chief Magistrate’s Court  Civil Suit No. 181 of 2010.  The judgment  and decree  was in  respect of a claim for general  damages  and special  damages  arising  from a road  traffic accident  involving  the plaintiff/applicant  herein  who was a pedal cyclist  and motor  vehicle  registration No.  GK A 317 G. The plaintiff/exparte applicant herein was awarded kshs 560,000 general damages less 20% contributory negligence; kshs 2,000 special damages; costs of the suit and interest.

2. Decree was drawn and issued on 19th May 2016 and a Certificate of Order Against the Government was issued on 19th December 2016.

3. The parent Government Ministry on whose behalf  the  Attorney General  was sued  and  to whom the  accident  motor  vehicle  belonged  is the  Ministry of Health.

4. The exparte  applicant’s  counsels  L.G. Kimani embarked  on the journey  of  asking for  payment  of the decretal sum from the defendant by submitting copies of decree  and  Certificate of  Order Against  the Government  as shown by letters dated  25th August  2016, reminders dated  6th December 206; 1st February 2017 and  27th March 2017  to no avail.

5. As execution cannot issue against the Government, the exparte/applicant /plaintiff  in the civil suit approached  this court  on  28th April  2017  vide chamber  summons  dated  10th April 2017 seeking leave of court to  institute Judicial Review  proceedings (orders) of mandamus  to compel  the respondents  to pay to the  applicant  the  decretal  sum in Kerugoya Chief Magistrate’s No. 181 of 2010 Geoffrey Gatwai Mwangi  vs The Honourable Attorney General being  shs  685,221 inclusive of costs  and  interest  thereon  at court rates.  The court  granted  leave to the  exparte  applicant  to apply  for mandamus  on 15th May 2017  interpartes  as the respondent’s counsel Miss Maina had no objection to such leave being granted.

6. The exparte  applicant  dutifully  filed the substantive notice of motion on 3rd May 2017  seeking  for mandamus  to compel  the respondents to pay the aforesaid decretal sum together with costs  of these Judicial Review proceedings.

7. The exparte applicant also filed a further affidavit annexing the judgment of Kerugoya CM CC 181/2010 between him and the Attorney General.

8. The respondents  never filed  any replying  affidavit or  grounds of opposition opposing the  application  but made a submission at the hearing  on 11th December  2017, contending that  the Ministry was advised to pay but that  they had not received  copy of judgment and that the Ministry was waiting for budgetary allocation of funds from the Treasury to release the funds.  However, there was no affidavit filed by the respondent.

9. In support of the application for mandamus, the exparte applicant  relied  on the statutory statement verifying  affidavit  and a further affidavit annexing copies of judgment in the Kerugoya matter, Certificate  of Order Against the  Government, Decree  in the Kerugoya  case and copies  of letters  forwarding  the said documents  to the Attorney General  and to the Ministry  of  Health asking  for payment/settlement  of the decree.

10. Mrs Kimani counsel for the exparte applicant submitted that there is abdication of a public duty on the part of the respondents to settle decree and that it was upon the Honourable Attorney General to obtain a copy of judgment and forward it to the Ministry of Health asking the latter to settle decree.

11. The respondent’s counsel Miss Mutsomi only submitted that the Ministry had been advised to settle the claim and that the applicant’s counsel delayed to send them a copy of judgment.

12. Having  considered the exparte  applicant’s  claim herein and the respondent’s submission from the bar by Miss Mutsomi, the only  issue for determination is whether  the applicant  is entitled  to the judicial review remedy of mandamus  sought, to issue against the respondents.

13. The Judicial Review order of mandamus issues to compel performance of a legal/statutory/constitutional or public duty owed by the respondent to the exparte applicant or interested party seeking or entitled to such remedy and which the respondent has declined, failed or neglected to perform.  Therefore the exparte applicant has to prove that there exists a legal or public duty owed to him by the respondents and which duty the respondents have declined to perform.

14. Section 21(4) of the Government Proceedings Act Cap 40 Laws of Kenya prohibits execution against the Government. The Section stipulates:

“(4)  Save as provided in this Section, No execution of attachment  or process in the nature  thereof  shall be  issued out of any court for enforcing payment  by the government  of any money or costs, 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.”

15. The same section at Subsection (1) stipulates:

“(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 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 costs (if any) ordered  to be paid  to the applicant.”

16. Under Section 21(3) of the said Act,

“ 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 party thereof, shall be suspended, and  if the certificate has not  been issued, may order any such  direction to be inserted  therein.”

17. What the above statutory provisions espouse is that no execution against the government can be levied.  Equally, no person can be personally held to account for settlement of a decree against the Government.

18. However, the Accounting Officer of the relevant Government Department is under a statutory duty to satisfy a judgment made by the court against that particular government department.

19. This is where the order of mandamus comes in to compel performance of a statutory duty as was held in the famous case of Republic vs Kenya National Examination Council exparte Gathenji & 8 Others CA 234/96that mandamus issues:

“ to compel performance of a public duty  and  that its purpose  is to remedy  the defects  of justice  and  so it  will issue   to the end that justice may be done, in all cases where there is a specific legal  right and no specific  remedy for  enforcing  that right and it may issue in cases where although there is alternative legal remedy, yet that mode of redress is less  convenient, beneficial  and  effectual.”

20. Thus, Mandamus issues to compel performance of a legal duty in accordance with the law where there is failure to perform such public duty.  (see Shah vs Attorney General (No. 3 ) Kampala HC Miscellaneous  No. 31/1969[1970] EA 543;  Republic vs  Town Clerk  of Kisumu Municipality Exparte East  African Engineering Consultants [2007] 2 EA 441; Republic vs  Dudsheath Exparte  Meredith  [1950] 2 ALL ER 741.

21. In this case, therefore, the court  is called  upon to compel  the  satisfaction of a legal duty owed  by the 1st respondent  to the  applicant  which is, settlement  of a lawful decree of the court issued in Kerugoya CM CC 181/2010, which decree is long overdue for settlement upon service  of a certificate  of  order against the government on the  1st respondent   on 9/2/2017.

22. The respondents  have not  appealed  against the  decree of the said  Kerugoya Court and neither  is there any stay of execution  of decree pending  some other action.

23. Neither is there any other alternative remedy for the applicant to realize the fruits of his lawful judgment. In my humble view, the  applicant  has satisfied  this court  that he has  a valid  decree  of a court of competent jurisdiction   against the respondents  and  that the Accounting Officer  of the  Ministry of Health  is under  a legal duty placed on him/her by Section 21(3) of the  Government Proceedings Act  Cap 40 Laws of Kenya, to settle  such decree  on behalf  of the Government Department.

24. There is no legal requirement  for copy of  judgment  to be  served  upon  the  respondents by the applicant  especially where  it is clear that the matter proceeded  interparties as was in  the instant case, with full participation of the respondents.

25. Further, the respondent’s counsel conceded in court by her submissions that they had advised the Ministry of Health to settle the decree.  There is no way the office of Attorney General  could  have advised  the  Accounting Officer  to settle decree if there was  any doubt  as to the legality  or validity of  the  decree  in the Kerugoya CM CC181/2010.  The amount for  settlement  has already been ascertained and  determined  by the subordinate  court by way of a decree and  Certificate  of Order Against the Government hence there is  no genuine  dispute  as to  the exact  decretal amount  to be payable  to the  exparte  applicant.

26. The exparte applicant has no other alternative means of recovering the sums due to him by decree of court of competent jurisdiction.  He cannot be allowed to hold a barren decree when there is a specific duty imposed by statute ( sec 21  of the Government  Proceedings Act ) on the 1st respondent  to settle decree.  There is no discretion given to the Accounting Officer, to pay or chose not to pay or settle a decree of the court.

27. Accordingly, this court is left with no other order or remedy to bequeath  to the exparte applicant  other than the remedy of mandamus to compel the 1st respondent to settle decree  in Kerugoya  CM CC 181/2010 as decreed  on 22nd July 2015  and quantified vide Certificate of Order Against the Government  issued on 19th December 2016 for reasons that the 1st respondent  has not demonstrated  the  willingness  to settle the said  decree  without  being compelled  to do so.

28. There is no legal requirement that the Accounting Officer only settles decrees after budgetary allocation and a Parliamentary approval of government expenditure in a given financial year.  See Miscellaneous Application 193/2015 Republic vs Attorney General & Another Exparte Ongata Works Limited [2016] e KLR.

29. Accordingly, the order  which commends  itself  for this court  to grant  is to allow the  exparte  applicant’s  application  for mandamus dated  22nd  May  2017  and I hereby issue judicial review order of  mandamus  compelling the 1st respondent Principal Secretary and Accounting Officer  of  the Ministry of Health  to pay  to the exparte applicant the sum of kshs 685,221. 00 as per the Certificate of Order Against the Government dated 19th  December, 2016  issued in  Kerugoya  CM CC No. 181/2010.  The exparte applicant will also have costs of these Judicial Review proceedings.

Dated, signed and delivered in open court at Nairobi this 2nd day of February 2018.

R.E. ABURILI

JUDGE

In the presence of:

Mrs Kimani for the applicant

Miss Daido for Respondents

CA: Kombo