Tom Ojienda & Associates v County Secretary Nairobi City County & another [2023] KEHC 21434 (KLR)

Tom Ojienda & Associates v County Secretary Nairobi City County & another (Judicial Review Miscellaneous Application 121 of 2017) [2023] KEHC 21434 (KLR) (Judicial Review) (21 July 2023) (Ruling)

Neutral citation: [2023] KEHC 21434 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application 121 of 2017

JM Chigiti, J

July 21, 2023

Between

Prof. Tom Ojienda & Associates

Applicant

and

The County Secretary Nairobi City County

1st Respondent

Chief Officer, Finance/County Treasurer, Nairobi City County

2nd Respondent

Ruling

1. On February 14, 2023, The Respondent paid the Applicant the sum of Kshs 20,000,000. 00 and undertook to give a proposal on March 15, 2023 on how the balance a balance of Kshs 133,202,739. 72 in compliance with the Court orders of 14th February 2023.

2. The Respondents case: According to the Respondent the following are the issues for determination: -i.Whether the draft budget provided as directed by the Court provides plans for payment of the balance of the decretal sum?ii.Who is the accounting officer of the Nairobi City County Government?iii.Whether sums owed to the Applicant by the Nairobi City County is a personal debt owed by Ms Asha Abdi?

3. The Respondent in its submissions confirms that on February 14, 2023, as a sign of good will without any budgetary provision the said officers undertook to pay to the Applicant a sum of Kshs 20,000,000. 00 and undertook to give a proposal on March 15, 2023 on how the balance would be paid. On March 17, 2023 the Applicant confirmed receipt of the said Kshs 20 Million thus leaving a balance of Kshs 133,202,739. 72 in compliance with the Court orders of February 14, 2023.

4. On April 19, 2023 Ms Asha Abdi the Chief Officer Finance testified before Court and informed the court that the County does not have money. Secondly, she explained to the Court the constraints she had having taken over the office on January 13, 2023 and the budgeting process in accordance with Public Finance Management Act, 2012 since the 2022-2023 financial year was ending on June 30, 2023. The Court being satisfied with the explanation issued, inter alia, specifically directive no. 3 as follows: -'That Ms Asha Abdi shall furnish the Court and the Decree holder with a copy of the draft Budget within seven (7) days of that date'

5. Indeed, it was confirmed on May 19, 2023 that Ms Asha Abdi complied with directive on the April 27, 2023 by a letter addressed to the Applicant and copied to the. Court. The proposed Budget for the Legal Department is a sum of Kshs 700,000,000. 00 and the Applicant is listed as Number 6 on Nairobi City County's Legal Department's List of Priorities containing the sum of Kshs 133,202,739. 72.

6. Ms Asha Abdi also took the parties through the County Governments Budget circle on how counties pays out monies due to the various claimants (including the Applicant) in accordance with the Public Finance Management Act, 2012. Section 125 of the Public Finance Management Act, 2012 provides as follows: -1. The budget process for county governments in any financial year shall consist of the following stages—a.Integrated development planning process which shall include both long term and medium term planning;b.Planning and establishing financial and economic priorities for the county over the medium term;c.Making an overall estimation of the county government's revenues and expenditures;d.Adoption of County Fiscal Strategy Paper;e.Preparing budget estimates for the county government and submitting estimates to the count) assembly;f.Approving of the estimates by the county assembly;g.Enacting an appropriation law and any other laws required to implement the county government's budget;h.Implementing the county government's budget; andi.Accounting for, and evaluating, the county government's budgeted revenues and expenditures.2. The County Executive Committee member for finance shall ensure that there is public participation in the budget process.

7. Ms Asha Abdi testified that the County Assembly is required to approve of the budget estimates by June 30, 2023. This Honourable Court equally takes judicial notice on this position on budget circles by the County's and the National Government.

8. Further the Respondent confirmed that on May 19, 2023 that Ms Asha Abdi complied with directive on the April 27, 2023 by a letter addressed to the Applicant and copied to the Court. The proposed Budget for the entire Legal Department is a sum of Kshs 700,000,000. 00 and the Applicant is listed as Number 6 on Nairobi City County's Legal Department's List of Priorities containing the sum of Kshs 133,202,739. 72.

9. It is the Respondents case that there is now a clear provision on how the balance will be paid and accordingly the Applicant should wait for the approval by the County Assembly and disbursement by the National Treasury and mention the matter as proposed around the first week of August 2023.

Orders: 1. The Respondents shall cause the payment of the sum of Kshs 133,202,739. 72 on or before August 30, 2023.

2. In the event the Kshs 133,202,739. 72 is not paid on or before August 30, 2023, then the court shall proceed to sentence the contemnor.

3. The matter will be mentioned on October 4, 2023 to report compliance or for purposes of sentencing.

4. These orders shall apply to JR No 123 of 2017.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF JULY, 2023. ……………………………………JOHN CHIGITI (SC)JUDGE