Republic v Principal Secretary,Ministry of Health & Attorney General Ex-Parte Equip Agencies Limited [2017] KEHC 916 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW

MISCELLANEOUS APPLICATION NO.  55 OF 2017

IN THE MATTER OF: SECTION 8 AND 9 OF THE LAW REFORM ACT, CAP 26 LAWS OF KENYA

AND

IN THE MATTER OF: SECTION 21(3) OF THE GOVERNMENT PROCEEDINGS ACT CAP 40 LAWS OF KENYA

AND

IN THE MATTER OF: ARTICLE 48 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF: SECTION 47(1) OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS

AND

IN THE MATTER OF ENFORCEMENT  OF DECREE PASSED BY  HIGH COURT  ON 2ND DECEMBER, 2011  IN THE HIGH COURT  OF KENYA AT  NAIROBI(COMMERCIAL & TAX DIVISION) CIVIL CASE NO.159 OF  2006  EQUIP  AGENCIES  LIMITED  VS.  HON. ATTORNEY GENERAL

BETWEEN

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

VERSUS

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

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

EQUIP AGENCIES LIMITED...............................................EXPARTE APPLICANT

JUDGMENT

1. This determination settles the exparte applicant’s Notice of Motion dated 22nd March 2017 pursuant to leave of court granted on 20th March 2017 by Honourable Odunga J.

2. In the Exparte applicant’s Notice of Motion filed by Equip Agencies Ltd, the Exparte applicant seeks for Judicial Review orders of Mandamus compelling the 1st respondent who is the Principal Secretary, Ministry of Health to pay the exparte applicant:

a) The sum of kshs 1,862, 302, 792 being the decretal amount owed to it as a result of the judgment issued on 2nd December, 2011 in HCC 159 of 2006 Equip Agencies Ltd v The Honourable Attorney General.

b) Interest in the kshs 1,862,302,792 above compounded at 18% per annum from 1st March 1999 until payment in full; and

c) The taxed costs of the suit in the sum of kshs 446,073,972. 70;

d) Costs of the application to be borne by the respondents.

3. The Notice of Motion is supported by the Statutory Statement and Verifying Affidavit of Diryesh Indubhai Patel, filed accompanying the application for leave.

4. The application was opposed by the respondents who filed replying affidavit sworn by Julius Korir on 18th April 2017 and a supplementary affidavit sworn  by the same  Julius  Korir  on 9th October  2017.

5. The exparte applicant’s case is that on 22nd July 1999, the exparte applicant instituted a civil suit vide High Court at Nairobi  Commercial and Tax Division in HCC 1459 of 1999 later  renumbered HCC 159/2006   Equip Agencies  Ltd vs  The Honourable  Attorney General, claiming for kshs 1,862,302,792 from the Ministry  of Health  for supply  of various  anti-malaria medical  equipment and anti malarial drugs throughout the country, which sums due had remained unpaid despite demands for payment  made.

6. That on 19th July 2000 the applicant filed an application for striking  out of the defence  filed by the Attorney General  who was sued on  behalf of  the Ministry of Health, on grounds that the defence as filed  was frivolous  and  vexatious.

7. That on 15th December 2000, the Court granted the application by the applicant, effectively striking out the defence filed by the Attorney General on behalf of the Ministry of Health.

8. However, it is averred that the  Attorney General  appealed against the said ruling  to the Court of Appeal vide Nairobi Civil Appeal No.189 of 2002 Attorney General vs Equip Agencies Ltd and that on 10th February 2006 the Court of Appeal granted the Honourable Attorney General an unconditional  leave to  defend  the  suit in the High Court.

9. It is pleaded that the case then proceeded to hearing interpartes with the applicant/plaintiff calling two witnesses whereas the Attorney General defendant closed their defence without calling any witness.

10. On  2nd December 2011 the court, Honourable Justice Muga  Apondi (as he then was) [(read and delivered on his behalf by Honourable  Daniel  Musinga J ( as he then was)] rendered a judgment in favour of the plaintiff/ exparte applicant  herein  against the respondent  for  a sum of kshs 1,862,302,792 together  with interest at  18%  per annum  from 1st March 1999 until payment in full and ordered the defendant  to bear  the costs of the suit. The said judgment was delivered in the presence of both parties’ advocates as shown by annexture DIP’4. ’

11. The exparte applicant claims that after the judgment was delivered, the defendant Attorney General filed a  Notice of Appeal on 15th December 2011 but that todate  no steps  have been taken to file a record of appeal within the required  timelines  stipulated  in Rule  83  of the Court of Appeal  Rules, 2010.

12. According to the exparte applicant, later, vide a ruling dated 30th October 2012, the High Court amended the judgment dated  2nd  December 2011  to the  effect  that the sum  of kshs 1,862,302,792 was to  attract interest at  18% per annum from  1st March  1999 until payment  in full, and that on 26th June 2013,  a decree was drawn  and  extracted with the approval of the Attorney General.  Later on 7th November 2014, the exparte applicant drew  and filed  a party  and  party  bill  of  costs which were taxed by the Deputy Registrar at kshs  446,073,972. 70  as shown by copy  of annexed  ruling  on Taxation delivered on  16th November  2016. However, it is claimed that the Attorney General never filed any reference to challenge the taxation ruling thereof.

13. It is also claimed that on 6th December 2016, a Certificate of Order Against the Government was drawn for a total sum ofKshs  34,736,558,592 inclusive of decretal sum, interest  and  costs  as taxed which certificate of order was served upon the Government as required under Section 21(2) of the  Government  Proceedings  Act (Cap  40 Laws of Kenya).

14. It is  alleged  that despite  the  demand  for settlement  of decree, the  Accounting Officer of the Ministry of Health  has to date  refused, neglected  and or failed to settle  the decree  as per the Certificate  of Order  Against the Government  which  refusal  and  or failure  to pay is unconstitutional and violates the applicant’s right to  access  justice   as enshrined  in Article 48  of the Constitution.

15. The exparte applicant avers that it is now over  5 years  since  judgment was delivered  in favour  of the applicant but  the  respondent  has refused to settle  decree despite being supplied with the goods namely, Anti-malarial   equipment and drugs  for supply all over  the  country way back in 1995 and  before the contract for supply was cancelled  on  23rd August  1996.

16. It is asserted that the claim was only for the goods supplied to the Government. The exparte applicant therefore claims that since Section 21(4) of the Government Proceedings Act prohibits execution and attachment of government money and properties, the 1st  respondent  is hiding  behind   the  said provisions  of the law  to  unreasonably fail to pay to the applicant herein the  decretal  sum, despite  several demands made in writing.

17. It is alleged that the failure to pay the  decretal  sum is a serious   dereliction of duty  on the part of the respondents  as the decretal sum continues to escalate due to interest rates which  is an  imprudent  management of public finances contrary to Article  201 of the Constitution of Kenya, 2010. It is claimed that despite the applicant’s willingness to negotiate for a settlement in reasonable installments to ensure that the decretal sum is fully paid without overstretching the public finances, the Accounting Officer has been unwilling to discuss any options.

18. On the part of the Respondents, in their replying and supplementary affidavits sworn by Mr Julius Korir, it is claimed that the  judgment of the High Court  is contested  by the respondents and  that it is  subject  of an  impending  appeal by the respondent; in accordance with the leave to appeal  granted by Muga Apondi J (as he then was) and as shown by the notice of  appeal  dated  15th December  2011.

19. According to Mr Julius Korir, the typed proceedings in Nairobi HCC 159/2006 have yet to be availed todate for the purposes of preparing and filing of a record of appeal.

20. Further, that despite several written requests to the Deputy Registrar  of the Court seeking to be furnished with the typed proceeding, there has  been no feedback on the same  and  that time for filing of the appeal does not run until the typed  proceedings have been availed hence the respondents are  still within the  prescribed time  for filing  the  record of  appeal hence  the notice of appeal  dated  15th December  2011 remains  valid.

21. It is  also claimed that the  decision of the Taxing Master  in the   taxation ruling of  16th November  2016  is challenged  vide a Reference  filed  and  dated  27th February  2017  and which  is pending  before the  High Court.

22. The respondents contend that the progress of the appeal has been undermined by the loss  or otherwise the disappearance of the court file  in Nairobi HCC 159/2006 or the disappearance of the record of proceedings from the said court file  HCC  159/2006.

23. It is further contended that equally, the office file at the office of the Attorney General  with respect  to HCC 159/2006  also vanished and that  as a result, the office had to reconstruct a new file from the court file  records whereupon  on several occasions the court file  was  perused  but found not to have any record of proceedings and judgment  made by Honourable  Justice Muga Apondi  in the said  matter.

24. It is further claimed that the matter of the missing file has been referred to the Judiciary Ombudsman for his intervention hence the application herein for mandamus is premature and should be struck out.

25. In the supplementary  affidavit  filed  on 10th October  2017, sworn by Mr Julius Korir, the respondents claim that the decree and Certificate of Order  Against  the Government  which  is sought  to be  enforced  is substantively defective and that the disappearance  of the court’s record of proceedings has been referred to the Judiciary Ombudsman  hence  the Decree  and Costs  as  certified  by the court cannot  be enforced  by this court.

26. The parties’  advocates  argued  the application  orally  before me  on 11th October  2017  with Mr Githumbi counsel  holding  brief for Mr Waweru Gatonye for the applicant whereas the   respondents  were represented  by Miss Nthiga  holding brief  for Mr Waigi Kamau.

27. According  to Mr  Githumbi, the  Accounting  Officer  is under a  duty to settle decree once  a Certificate of Order Against  the Government  has  been  served  upon them  and  if they fail to pay that would  be in violation of Section  21(3)  of the Government Proceedings  Act.

28. It was submitted that failure to pay or to propose on how to settle the decretal sum is unreasonable.  Reliance  was placed  on Republic  vs Attorney General  & James Alfred Koroso  [2013] e KLR where  the Court held  that failure to settle  decree is  a violation of one’s right  to access  justice. Further reliance was placed on Sec M. Co Ltd CS County  Government  of Narok [2017] e KLR where it  was held  that once  a Certificate  of  Order Against  the Government  is  issued, and a demand for payment  made,  mandamus  must issue.

29. It was further submitted that albeit a Notice of Appeal was filed and served, no action or steps have been taken to have the appeal heard since 2011. It was further submitted that the application  for proceedings  was  only  made in  2013  after  an application for leave herein to  institute  these Judicial Review  proceedings was filed and served upon the Honourable Attorney General and so was the application  for enlargement  of time  to file  a reference challenging the taxation which took place in November, 2016.  It was submitted that a notice of appeal was not a stay hence the motion should be allowed.

30. In response to the application for Mandamus, Miss Nthiga for the respondents submitted that she wholly relied on the replying and supplementary affidavits sworn by Mr Julius Korir referred to above urging the court to dismiss the motion with costs.  It was  submitted that the  court file  in the HCC  159/2006  does not  contain  a record  of  proceedings  and judgment hence they did not understand how the taxing officer arrived at the Taxation of costs figures and or in issuing a certificate of Order Against the Government.

31. Counsel further maintained that there is a pending appeal against the judgment filed by the Honourable Attorney General on 15th December 2011 yet there are no proceedings to enable the Honourable Attorney General file an appeal albeit efforts were ongoing to get the proceedings.

32. In a brief rejoinder, Mr Githumbi submitted that the respondents   were at  all  times  represented  in the civil matter  and that  the  applicant even filed an application for clarification of the judgment, taxed the costs, all proceedings taking place interpartes but that  the respondent  only applied  for  proceedings  on 28th  February 2017 over six (6)  years from 2011 when the judgment  was rendered  and  a notice of appeal filed hence there can be no bona fides in the contentions of the respondents.

33. Further, that the alleged defects in the decree, certificate of costs and Certificate of Order Against the Government have not been particularized. Further, that the taxation which was done interpartes was vehemently opposed based on the contents of the judgment and proceedings.

DETERMINATION

34. I have  carefully considered the foregoing and in my humble  view, the main issues for determination  in this matter are whether  the  exparte  applicant  is entitled  to  Judicial Review Orders of mandamus; and what orders should this court make; and  finally, who  should bear the  costs of  the  proceedings.  There are also many anciliary questions to be answered.

35. On the first issue of whether the exparte applicant is entitled to the Judicial Review orders of mandamus sought against  the 1st respondent  Principal Secretary, Ministry of Health, the commencement  point is  Section 21(4) of the Government  Proceedings Act, Cap  40 Laws of Kenya which prohibits execution against the  Government.

36. In this case, there is no dispute that there is a valid judgment of the Superior Court in HCC 159/2006 in favour of and between the exparte applicant herein as plaintiff against, and against the Attorney General who was sued as the legal representative of the National Government in all civil proceedings to which the National Government or Government Departments are parties, as stipulated in Article 156 of the Constitution.

37. That  judgment which was  delivered  by Honourable  Daniel Mutungi J (as he then was) on 2nd December 2011 on behalf of   Honourable  Justice  Muga Apondi ( as he then was),  was clear that the applicant herein had sued  the Attorney General  seeking for special damages (liquidated) sum of kshs 1,862,302,792 together with interest  at 18%  per annum  compounded from  1st March 1999 until payment in full, representing  money owed to the applicant company by  the Ministry  of  Health on account of supply and delivery of anti-malaria equipment and drugs  pursuant to two contracts of agreement S/4056 of 15th July  1993 and contract agreement No. S/4420 of 14th July 1995 between the Government and the applicant herein Equip Agencies Limited.

38. The case proceeded to hearing interparties with the applicant calling two witnesses who testified namely Mr Divyesh Indubhai Patel and Wilfred Abincha Onono.  This  was after the Court of Appeal upheld the appeal by the  Attorney General challenging the summary judgment that had initially been entered against the Attorney General following the applicant’s successful application before the High Court to strike out the defence filed by the Attorney General on account, inter alia, that the defence was  frivolous and vexatious.

39. It is not in dispute that at the interpartes hearing of the suit, the Attorney General offered to close the  defence  case without calling any witness to counter the plaintiff/applicant’s case  and hence the  judgment  of 2nd December 2011 which is annexed to the applicant’s  verifying affidavit  and marked ‘DIP 4’ is born out of non-contested evidence adduced by the exparte applicant herein.

40. Again, the material placed before  the court vide Annexture ‘DIP-6’ which is  a ruling delivered  on  16th November  2016   in the same suit wherein the applicant   had sought  clarification of the judgment of 2nd December  2011 on whether  the interest  actually awarded to the plaintiff was indeed the compound interest  referred  to in the judgment  and that should there be a clerical  mistake, then the court be pleased to correct  the same  under section 99 of the Civil Procedure Act.

41. The Court- Muga Apondi J (as he then was) clarified the judgment and affirmed the courts judgment of 2nd December 2011 to the effect that the 18% per annum was compounded interest.

42. But before then, the documents annexed to these proceedings show that on 15th December  2017,  after delivery  of  judgment  in HCC 159/2006   originally  HCC 1459/1999 the  2nd respondent  Attorney General filed a Notice of Appeal dated the same day, intending to file an appeal to the Court of Appeal challenging  the judgment of 2nd December  2011.

43. In the  affidavits in  reply to the motion subject of this judgment sworn by the 1st respondent’s  Principal Secretary Mr Julius Korir, it is  deposed that the Notice of Appeal   was filed  with leave  of court enlarging  the  period.

44. Annexture ‘DP8’ is the plaintiff’s/exparte applicant’s bill of costs  which  was taxed  interpartes by Honourable Carolyne Watimmah, Deputy  Registrar of the Court, vide her ruling issued  on 16th November  2016 in the presence of the plaintiff’s counsel Mr Githumbi  and Ms Mamet  Advocate holding brief for Mr Kihara advocate for the defendant/respondent herein.

45. Annexture DIP6 is a decree given on 30th October, 2012  and  issued  on  26th June 2013 whereas Annexure  DIP 10 is the Certificate of Order Against the Government dated  6th December  pursuant  to Order  20  Rule  3 of  the Civil Procedure Rules.

46. Annexture DIP 11 is a letter by the applicant’s counsel  to Mr Cleophas Mailu Cabinet Secretary Ministry of Health dated  13th September  2016 seeking for settlement  of the  decretal sum and this was followed by another letter dated 15th December  2016 addressed to the Honourable Attorney General, and another letter to Honourable Githu Muigai dated 19th January 2017 complaining that the Government had todate not settled the decree in the suit  and threatening legal action by way of Judicial Review proceedings as that  was the  last reminder.

47. In the letter dated 13th September 2016, the applicant’s  advocate  enclosed  copy  of the ruling  dated  30th October 2012 which clarified/corrected  the  judgment of  2nd December 2011 and  in the letters dated  19th January  2017 and  15th December 2016 respectively, the certificate or Order Against the Government was enclosed.

48. The respondents have not denied any of the above factual narrations.  The only defence put forward to these proceedings is that the motion for Mandamus is not merited because there is a notice of appeal pending and that the respondent’s efforts to get copies of proceedings from the HCC 159/2006 have proved futile as those proceedings on perusal of the court file, were found to be missing.  Secondly, that until the court proceedings are availed to the respondents, the notice of appeal as filed on 15th December 2011 is still valid.  Further, that the respondents’ own office file also vanished.

49. There is, however, no order of stay of execution of the judgment of the Superior Court, pending the filing, hearing and determination of the intended appeal.  In  addition, there is no application filed  seeking for such stay either from the Superior Court where judgment was delivered or from the Court of Appeal, explaining the circumstances under which  the record of appeal  has not  been filed  from 15th December 2011  to date.

50. Further, from the 16th November 2016 when the ruling on taxation of costs was delivered, no reference or notice of objection to taxation of costs was ever filed and it was only on 2nd March 2017 when an application for enlargement of time for filing of the reference was lodged. That application was filed simultaneous with another application dated 27th February 2017 filed on  2nd March 2017 seeking for review and or setting aside of the ruling  of taxation  of 16th December  2016  on taxation of party and party bill of costs dated  6thOctober  2014.

51. The respondent’s  own annextures  JK2 dated  16th March  2017  show that  the  first time the  respondent  was seeking  for typed  copies of proceedings in the Superior Court was on 28th February  2017, and  a reminder  dated 16th March  2017.  That letter refers to another letter dated 28th March 2017 which was a future date.

52. By 28th February 2017 the exparte  applicant herein  had already  filed these  proceedings seeking  for leave  to apply and  on  13th February 2017 this court had directed that the application  for leave to be served upon  the  respondents  for interpartes hearing  on 20th March 2017.  When the matter came up on 20th March 2017, the respondents never appeared despite service of the chamber summons for leave upon them and therefore Honourable   Odunga J had no difficulty granting the exparte applicant leave to apply.

53. Again, the applications for  review  of the ruling for taxation and or for enlargement of  time within which to file a reference was filed on  2nd March 2017 after these proceedings were initiated.  Similarly, it was on 6thApril 2017 when the respondents after these proceedings were initiated, wrote to the office of  Judiciary Ombudsman complaining that they had not received any feedback  on their requests  for  copies of  typed  proceedings for purposes of appeal. There is  nothing in that letter  to the Judiciary Ombudsman to show  that the  2nd respondent  had perused  the file and  failed  to get handwritten proceedings therein, or that the  court file had gone  missing.

54. Furthermore, the letter written on 6th April 2017 was only received at the office of the Ombudsman on 17th April 2017.  There is  also annexture  JK5  which is a letter  to the Deputy  Registrar, Milimani Commercial Courts dated 3rd December  2014 seeking to photocopy the entire file (proceedings, pleadings  and  judgment) in respect of the civil case to enable the 2nd respondent  reconstruct its file  for records and necessary action.  There was no indication as  at  3rd  December  2014  three years  after the judgment on 2nd December 2011, to indicate  that the respondents  ever intended  to obtain   typed or certified  copies of proceedings and judgment or the record for purposes of preparing  a record of appeal, to actualize the intended  appeal as per the notice of appeal filed on  15th December 2011.

55. The office of the Attorney General  is one of the  most important public and state  offices in the Republic of  Kenya and  there is no other office like that office which is endowed  with great  legal minds  with the mandate  of  protecting  the  public interest and the  Rule of Law.

56. It is not in dispute that what now seems to be the outstanding  sums due  on the judgment  of 2nd December  2011 is a colossal  sum of money going  into nearly 50 billion Kenya shillings, from  a judgment  of about 2 billion  in 2011 and  taxed  costs of  about 500 million.  The extra money is arrived at due to the ever accruing compound interest which was awarded by the court   at 18% per annum from 1999 until payment in full.

57. There is no dispute that the drugs and equipment which were supplied in the 1990s by the applicant no doubt benefited the many Kenyans who most needed the anti malarial drugs and equipments. We live in a tropical country and therefore malaria being a tropical decease is rampant such that unless measures are put in place to diagnose and treat, many citizens are likely to suffer even to death, and especially children under the age of 10 years.

58. There is no denial that the good Government  of Kenya  procured  and the exparte applicant supplied the equipment and the anti-malarial  drugs as per the judgment  of  2nd  December  2011.  A supply of goods in excess of kshs 1. 8 billion in the late 1990s is no mean supply and the money then cannot be equated to the current value of the Kenya Shillings due to inflationary trends.

59. But this court has got one great concern.  That  of  the laxity, complacence  or at the very worst, apparent incompetence on the part of the officers at the civil litigation Department office of the Honourable  Attorney  General  who have  all along  handled  this matter, a matter of  such great  magnitude. This complacency is demonstrated in the documentation that I have just referred  to showing that  even after  the judgment  of  2nd  December  2011, and  a notice of appeal  filed, no request  for  certified  copies of proceedings  and  judgment  was  ever  sought  or made  to the court to enable  the respondents compile and  file a  record of  appeal within 60 days  or  after, with leave  of the Court.

60. The  matter  was  fully  heard interpartes with a denial  of the claim  which was  liquidated  yet no single  witness   was called by the office of the Attorney General  from the Ministry  of Health  to counter the oral and documentary evidence adduced by the  two  witnesses  called by the exparte applicant.  One therefore wonders, whether the Respondents would wish to call that evidence on appeal to reverse the judgment of 2nd December 2011. Wheras it is possible under the law to apply for additional evidence on appeal, in this case there is no such suggestion or contemplation.  In addition, a letter  dated  3rd December  2014  Ref AG/MOH/13/99(TY)  to  the Deputy Registrar, Milimani Commercial Courts only sought for  photocopies of  the entire file for reconstruction of the 2nd respondent’s own office file for  their records  and  necessary action, (NOT for  purposes of preparing  a  record of Appeal). As at that date, not a single request had been made for certified typed court proceedings!

61. Furthermore, the question that begs many answers is, where did the 2nd respondent’s office file go?  And  between  the  2nd respondent’s office file  and  the court record, which of  the two  was  critical  for  purposes  of  preparing a record of appeal in the intended  Appeal?

62. The respondents   now contend that on  their perusal  of the court file, they  were unable  to get any proceedings  upon which the judgment of  2nd December  2011  and  the ruling on taxation by the taxing master  were anchored,  yet the  proceedings  were conducted  interpartes! Are the respondents now saying that there is no judgment upon which Mandamus can issue or that infact there is no valid decree or Certificate of Order Against the Government?

63. In addition, the court is bothered by the question of whether there is a relationship between the alleged disappearance  of the court  proceedings  and  the 2nd respondent’s office file  at the office  of the Attorney General  and if so, who is this person  or persons  responsible  for  this kind of mischief and with what intention?

64. Furthermore, is the  letter to Ombudsman  which was  written  only after these  proceedings for Judicial Review were initiated  only but  a cover up of  a  scheme  to defraud  the  public through delay  so that more interest can accrue,  due to non payment?  Is there a veiled attempt to defraud the public and share the spoils? Who was responsible, if  at  all for the  disappearance  of the  office  file  at the Attorney General’s  Office  and  why?  Why did the office of the Attorney General not bother with the issue of the intended appeal only to wake up nearly six years later to pretend to be pursuing a nonexistent   appeal?

65. All the above questions among  others beg for  answers and  are  perturbing  to even think of  how this matter  has been handled  so casually  by the advocates from the Office of the Attorney General in the sense that  even on the  hearing date, the advocate  who was  tasked with the conduct  of the matter  Miss Nthiga   was  hard pressed  through probing  by the court  to explain what defects  she found existed  in the application  and why she thought  the  motion by the respondent  was not merited  and  all she could say was that her instructions were that because there  were  no proceedings upon which  the judgment  and  taxation of costs  were anchored, then the application for mandamus was defective and that because there  was pursuit   of an appeal, no  mandamus  could lie.  Miss Nthiga could not  answer to the simple  question whether  there was  any application  for stay pending  appeal or an application for order of  stay of  these  proceedings pending  the  purported appeal or challenge to the Order on Taxation of the Party and Bill of Costs.

66. It is not within the province of this court to delve into the merits or demerits of the intended appeal as not even a single ground of appeal was mentioned to exist.in other words, no draft memorandum of Appeal was annexed to demonstrate the would be arguable appeal.  However, it is disturbing to learn  that  billions  of shillings  belonging  to the public  has to go towards settling  interest  at a compounded  rate of  18% per annum  from 1999  until payment in full, to only one individual Kenyan corporate entity, without an appeal  or  stay order, yet the respondents are not even bothered  to negotiate  with the exparte  applicant’s  counsel  who, through  the letters shown  on record, has been more than  willing  to negotiate the mode of payment and probably consider, as a sensible  citizen of this country, to waive off some interest to enable the  government budget for the money and settle  or to seek orders stopping the  interest  from accruing  further. From the initial shs 1. 8 billion in 1999, it is now over 35 million! Even if this money was fixed in an interest earning or call account, one would never earn interest of 18% per annum for the past 18 years! The public is no doubt being defrauded by design.

67. I have  found it  necessary  to venture  into the above  territory  because the  people of Kenya expect public  officers and  offices  to take care of  their  scarce  resources.  Article 201 (d) of the Constitution is clear that public money shall be used in a prudent and responsible way. Paying for drugs and medical equipment is a prudent way of expending public funds but delay in doing so, in order to cause irredeemable loss to many poor Kenyans  who cannot even afford basic medical care in public hospitals either because the Doctors and other medical personnel are on strike for non-payment of their dues or because there is no medicine and equipment is unacceptable and immoral.

68. Public and state officers have a duty to perform- that duty of settling  decrees  of the court, upon being  served  with judgment  and  Certificate  of Order  Against  the  Government.  And if they suspect that the Decree or Order is fraudulent, they can confirm from the court record of proceedings and judgment, especially where the case was conducted exparte. Failure  to do so attracts  the court’s  discretion to issue  the order of  mandamus since  there is no other  remedy available to the exparte applicant ( see  Republic vs  Attorney General  & Another  exparte  James  Alfred  Koroso[2013] e KLR.

69. People  who come  to court seeking  for justice  and  in whose  favour  decrees and  judgments  are made  must  be allowed to enforce those judgments  for that is the only way  justice  can be  seen to be  done.  Illusionary  justice is no  justice  at all  and  therefore  the  provisions  of Article  48  of the Constitution on access to justice for all  and the principles and  values  espoused  in Articles  10 and  159 of the  Constitution  on the respect for the rule  of law, equity, social justice, human  rights, equality, expeditions  justice shall be but a mirage  if a party  who obtains  a judgment from a court of competent jurisdiction in proceedings  which are conducted  openly  and  transparently  can be  kept  waiting  for  decades to enforce  the decree.

70. There is even no indication that the respondents have the intention of settling the decree in HCC 159/2006 now or in the near or far future.

71. Mandamus here is not being sought to enforce any decree against the respondents individually for they cannot be   individually or personally liable to settle the decree. The Government Proceedings Act allows the applicant to seek to compel the government official who is the accounting officer responsible for incurring of the debt subject of the decree to do that which the Government, through Parliament has directed him/her to do.

72. The duty to settle decrees of the court by the accounting  officers  out of monies or funds provided by Parliament  is an  imperative  duty not a discretionary duty and in ordering for the mandamus  to compel payment, what the court would be doing is to promote  substantial  justice and the Rule of Law.

73. The exparte applicant has waited long enough.  It has no other way of ensuring that the judgment in HCC 159/2006 is enforced and unless this court acts, the applicant will forever baby sit   the barren decree and remain oppressed. It can also become bankrupt.  It is even surprising that the applicant after supplying drugs and equipment work over 1. 8 billion shillings to the government  of Kenya, over 20 years ago has remained a going concern.

74. The Government of Kenya should not kill local investments and should not incur heavy debts unnecessarily by delayed payments which accrue interest that eventually overshadow the principal sums due.

75. The fact that a notice of appeal against the judgment and decree of the superior court was filed way back in 2011 is not in itself an appeal.  Moreso, as earlier stated, there is no application for stay of enforcement of that judgment and the application for certified copies of proceedings was only made this year after 6 years of the date of judgment, upon these proceedings being instituted.

76. The only inference that this court can make is that the respondents are hiding behind the notice of appeal to evade their obligations under the decree  which  may occasion  a miscarriage  of justice  since there is no guarantee that the intended appeal, in the alleged  absence  of court proceedings, will ever be  filed, heard  and determined, six  years  down  the line  since  judgment   was rendered  infavour  of the exparte  applicant  on 2nd  December  2011.  The conduct of the officers of the 2nd respondent, in my view, is not that of a person who is desirous of expediting the appeal process.

77. It  follows that whereas the amount due as at now is quite  colossal, and subject to calculation by the Court Deputy Registrar before a decree for Mandamus can be extracted, it is not for this court to deny the successful  litigant  the fruits of a lawful  judgment obtained from a court  of competent  jurisdiction, and  where the applicant  has no other  alternative  remedy.

78. The exparte applicant has complied with all the procedures  leading to grant  of an order  of mandamus, after making several  demands and notices  to institute these  proceedings  after the issue  and service of the judgment and Certificate of Order  Against  the Government  upon the respondents and there is no denial by the respondents  of the above position.

79. As was correctly pointed out by Honourable Odunga J in Sec & M Company Ltd vs County Secretary, county Government of Narok & Another [2017] e KLR:

“50…….to subject the party to the normal civil law procedures  would  engender  a miscarriage  of justice,  yet  Article  159(2) (b)  of the Constitution  mandates  that justice ought  not to  be delayed.  To take  a successful litigant  in circles  when adequate  notices  have been  given to the  government  to settle  a decree   would be  to turn  the  legal process into a theatre  of the  absurd.  The procedure subsequent to the issuance of the decree  and order  in my view  is meant to  facilitate  the  settlement  of the  amount due  from the Government  without ambush.  Otherwise the liability of the government accrues once the decision made against the government.  It is only that such liability cannot be enforced unless and until certain legal steps are taken in that direction. In other words there is no bar to the government settling a decree as soon as the judgment is delivered for the same.  Infact, it is my view that the Government ought to do so in order to save the tax payer further burden in form of interest.

In my view, the immunity extended to the  government   against the  turbulence of execution is meant  to be used in good faith  and  is not  meant to  insulate  or shield  the  Government  from meeting its legal  obligations owed to the citizens or third parties.

With respect to the pending appellate process, it is clear that mere challenge to a judgment does not bar the court from issuing orders of mandamus though the court may well be entitled to take the same into account in the exercise of its undoubted discretion.

In my view, the only way in  which the  respondent can  avoid  payment where there is a valid judgment of a court of  competent jurisdiction, save where the conditions precedent  have not  been satisfied, is  to show that the judgment  has  been set aside  an appeal or on review or  that an order of  stay  has been  issued  suspending  the  execution of the said judgment.

Order  42  Rule 6(1)  of the Civil Procedure  Rules  is clear  that even pendency of an appeal does not ipso facto operate  as a stay of  the decree  or order  appealed against.

80. In this case, Section 21(1), and (2) of the Government   Proceedings Act  Cap 40 Laws  of Kenya is clear that payment will be based on a Certificate of Order Against the Government obtained by the successful litigant  from the court  issuing  decree which should be served on the Attorney General after 21 days of entry of judgment.

81. Upon such Certificate of Order Against the Government  being served on the Attorney General, Section 21(3)  of the Government  proceedings Act  imposes  a duty on the Accounting Officer  concerned  to settle  the  sums  specified  in the said  order(s), to the person entitled  or to his  advocate together with  any interest  lawfully  accruing  thereon.  The above provision does not condition payment  to any budgetary  allocations  and  a Parliamentary approval of the  government  expenditure  in the financial  year subsequent  to which government  liability  accrues.  (see Githua J in Republic vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza [2012] e KLR.

82. In this case, there is no dispute that the Certificate of Order Against the Government was issued and served upon the Attorney General and  this was long  after  the entry  of judgment, nearly six years  later, after the  costs  were taxed.

83. For all the foregoing reasons, and consideration, I am satisfied that the exparte applicant’s notice of motion dated 13th February 2017 is merited.

84. In the end, the order that commends itself in this matter is:

a) That an order of Mandamus be and is hereby issued compelling the 1st respondent Principal Secretary, Ministry of Health to pay to the exparte applicant Equip Agencies Ltd:

i. the sum of kshs 1,862,302,792 being the decretal sum owed to the applicant as decreed on 2nd December 2011 in HCC 159 of 2006 Equip Agencies Ltd vs The Honourable Attorney General.

ii. Interest on the kshs 1,862,302,792 above compounded   at 18% per annum from 1st March 1999 until payment in full.

iii. The taxed costs of the suit in the sum of kshs 446, 073, 972, 70.

85. In order to avoid escalation of the costs  which are  payable  by the  already overburdened Kenyan tax payers in these hard  economic times, I shall not punish the tax payers for the lethargic  conduct of  the respondents.  I order that each party shall bear their own costs of these Judicial Review proceedings.

86. I further direct the Deputy Registrar of this Court to effect service of this judgment upon the Solicitor General of the Republic of Kenya to take necessary action.

Dated, signed and delivered in open court at Nairobi this 18th day of December, 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Munene Counsel h/b for Mr Kihara for the Respondents

Miss Muema h/b for Mr Githumbi for the exparte applicant

Court Assistant: George