Repulic v Clerk, County Assembly of Trans Nzoia Ex parte Manyonge Wanyama & Associates [2021] KEHC 7314 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

JUDICIAL  REVIEW  NO. 5 OF 2020

REPULIC................................................................................................APPLICANT

VERSUS

THE CLERK COUNTY ASSEMBLY OF TRANS NZOIA...1ST RESPONDENT

EXPARTE MANYONGE WANYAMA & ASSOCIATES.....2ND RESPONDENT

RULING

The Exparte Applicant, Manyonge Wanyama & Associates Advocates have sought orders of Judicial review  to enforce  an order that was issued  in their favour  by this court after the Advocate – Client bill of costs was  taxed.  According to the Ex-parte Applicant, the respondent was ordered to pay the sum of kshs  2,920,416/-.  However, instead of paying the entire sum , the  respondent withheld the sum of kshs 620,416/- ostensibly on account of withholding  tax payable to the Kenya revenue Authority.  It is the Exparte’s assertion that there was no evidence or proof that the Respondent had submitted this sum to Kenya Revenue Authority hence the present application to have the said sum paid to the Exparte Applicant.

Although the Respondent  did not file a replying  affidavit, a document was  presented to Court which  established,  to the satisfaction of the court that  the sum of Kshs 402,816/- was  withdrawn from the Respondent’s account at the  Central Bank of Kenya and transferred to  the Kenya  Revenue Authority’s  withholding VAT collection account maintained at the  Bank. The Exparte Applicant does not dispute that indeed such payment was  made but  requests to be  availed the withholding tax certificate to enable the firm give account to Kenya Revenue Authority in respect  to its tax affairs.  Ms Efedha for the Respondent  conceded in court that the Exparte Applicant was owed the sum of kshs  217,600/= being the difference between the amount that was paid to Kenya Revenue Authority a withholding tax and the sum of Kshs 920,416/- that the Exparte Applicant claimed.  The Respondent undertook to pay the said sum  when it is put in fu0nds by the central government. Mr. Gemenet for the Exparte Applicant was not opposed to the concession, but insisting that the court should compel the Respondent to pay the admitted sum.

It is clear from the above submissions that the only issue remaining  resolution is the availing of  the withholding tax certificate to the Exparte Applicant   and the settlement of the admitted balance. That being the case, this court makes the following order:

i) The Respondent shall avail to the Exparte Applicant the withholding tax certificate for the firm’s tax compliance purposes within   forty-five (45) days of today’s date.

ii) The Respondent shall pay the Exparte  Applicant the balance of kshs 271,600/= within sixty (60) days of today’s date.

iii) Either party be at liberty to apply.

iv) The Exparte Applicant shall have the  costs of kshs30,000/=.

Dated at Kitale this 5th day of May 2021.

L. KIMARU

JUDGE