1.The Applicant/Decree holder brought the application dated June 25, 2021premised on the provisions of Section 1A, 1B, 3, 3A, 63(e) of the Civil Procedure Act, Article 159(2)(d) of the Constitution of Kenya seeking for the following orders;a)...b)That the Honourable Court do issue an order for the County Secretary Busia County Government and Chief Officer, Ministry of Health, County Government of Busia to show cause why they should not be committed to civil jail for failing to comply with court order in vacating the land or settlement of the value at Kshs.57,000,000/=.c)That the Honourable Court do order for the Officer Commanding Police Station Busia, to provide security to the Applicant and/or his appointed agent qualified valuer as he enters on his property Bukhayo/Mundika/3644 to re-occupy in default of being paid Kshs.57,000,000/= valued.d)That in the alternative and without prejudice to (c) above, the Honourable Court do order that the Applicant be granted security by O.C.S. Busia Police Station or any other police officers as he repossesses his property per court judgment.e)That the Honourable Court do issue any and such orders as to ensure compliance with its decree of 20/4/2018 and to bring sanctity to court order.
2.The application was supported by the annexed affidavit of Joe David Abetter and on the following grounds;
3.The Respondent opposed the application by filing their Grounds of Opposition on July 2, 2021impleading that;(i)That the said Notice of Motion is defective and incompetent for failure to comply with the provisions of Section 21(4) of the Government Proceedings Act, Cap 40 Laws of Kenya, relating to execution of decrees or orders against government.(ii)That proper procedure for execution against Government is by way of an application for Judicial Review for an Order of Mandamus.(iii)That the requirement for compliance with the law is a duty incumbent upon the parties and hence mandatory.(iv)That there is no order of court for valuation of the subject land or payment to the decree-holder of Kshs.57,000,000/= or any part thereof.(v)That the said Notice of Motion seeking to issue in persona against the County Secretary and the Chief Officer, Department of Health and Sanitation is a desperate attempt to extort and defraud not merely the Busia County of money not owed but also to deny and deprive the community of Matayos sub-county of the benefit and services of a health facility due for elevation to a sub-county hospital.(vi)That the decree-holder title No. Bukhayo/Matayos/3644 is a subject of investigation by Government Agencies including the Directorate of Criminal Investigations and the Ethics and Anti-Corruption Commission and no payment can be made to the decree holder until the determination of the results of those investigations.
4.Additionally, the Respondent filed a replying affidavit dated June 30, 2021and sworn by Dr. Isaac Omeri, the Chief Officer, Department of Health and Sanitation of Busia County Government. Dr Omeri deposed to matters law already stated in the grounds of opposition.
5.The Applicant/decree-holder put in a further affidavit dated July 5, 2021stating that the decree by this court gave the Respondent the option of getting out of his land if for any reason they were unable, to compensate him for his land. He deposed that if the Chief Officer was candid with this court, they should have disclosed why it is taking them years to settle the matter as decreed and or as now valued since he is not out to profit from anything but out for true assessed value of his land upon which they have constructed and have been continuing constructing on even after the court’s judgment in sheer disobedience and show of misplaced bravado.
6.The applicant deposed to being unaware of any investigations being carried on in respect of his ownership of the land and wondered why it was taking longer than necessary for any decision to be made. That it is wrong to invoke the name of other state agencies such as Ethics and Anti-Corruption Agency among others as involved in this land issue which is purely a private land. He continued that the judgment-debtor has not prosecuted any appeal and/or review and or even alternative valuation report on the property they have illegally constructed on to show the actual value of the property compared to his. He further stated that the court can issue an order for security as he repossesses his land if the County Government believes that what he is interested in is only compensation and they can take away all and any developments on his land and supplant them elsewhere.
7.The parties agreed to dispense with the hearing of the application by way of written submissions. The Respondent put in their submissions on 4/10/2021 and submitted that they are a government in terms of Article 6(2) of the Constitution of Kenya and has all the privileges, immunities and protection accorded to the Government (national or county). They submitted that the proper procedure for executing against the Respondent is by way of an application for Judicial Review for an order of mandamus and the requirement for compliance with the law thereof is a statutory duty incumbent upon the parties, and is mandatory hence, binding. They said the orders sought herein by the applicant are completely flawed and bad in law for failure to comply with the due provisions of Section 21(4) of the Government Proceedings Act, Cap 40, Laws of Kenya, regarding execution against the government. Order 53 Rule 1 sub-rule (1)(2) of the Civil Procedure Rules further makes it a mandatory requirement for the applicant to first apply and obtain leave of court before proceeding to apply for an order of mandamus and therefore the application is premature, fatally defective and a pure abuse of the court process for blatant failure to comply with due statutory requirement regarding execution against the Government.
9.The Applicant filed his submissions on 7/6/2022 and said that what the he is seeking is a security order in enforcing its decree issued on 20/4/2018 whose terms are clear and remain in force. He submitted that the Respondent has been given a chance to appear in court and show cause through its officials known to be directly affected by the decree’s implementation. It is his submission that the sanctity of court orders and decrees should be protected by all and sundry and since there is no appeal and/or review filed to vacate the court orders intended to be implemented he urged the application be allowed in any of the limbs that is easier for the Respondent – vacate the land and/or settle the value.
10.Having carefully considered the application and rival submissions, the issue that comes up for determination is whether the application as filed is merited. The applicant has premised his application on Section 63(e) of the Civil Procedure Act which provided that court may, if it is so prescribed, make such interlocutory orders as may appear to the court to be just and convenient. The applicant wants the judgment-debtor to show cause why they should not be committed to civil jail for refusing to honour the decree of this court. He said that costs in this particular suit were taxed and a certificate of costs was issued and same was served upon the judgment-debtor but they have failed to make good the settlement. He annexed to the application copies of certificate of costs and certificate of order against the government served upon the county government.
11.The Respondent/judgment-debtor has faulted the application for not complying with the provisions of Section 21(4) of the Government Proceedings Act in relation to execution of decrees and orders against the government. Section 21(4) of the Government Proceedings Act Cap 40 of the Laws of Kenya provides as follows: -
13.It is not in doubt that there is a decree in favour of the applicant and that a Certificate of Order against the Government was served against the judgment-debtor herein which was done in compliance with Section 21 of the Government Proceedings Act. The defendants/judgment-debtor have however not fulfilled the terms of the decree. However, Section 21(3) of the Government Proceedings Act prevents the government from being executed against in order to fulfil a decree. The rationale of Section 21(3) was explained in Kisya Investments Ltd v Attorney General & Another  1KLR 74, as follows:-
14.Since the gist of the application is to have the order of this court executed against the judgment-debtor herein who is a government, the same has been brought to court prematurely. The law does not allow execution against the government unless an order of mandamus is sought and the applicant which has not been done in this instance. The NTSC should be undertaken once the judicial review orders have been granted.
15.Consequently, the court finds the application dated June 25, 2021 as premature and is hereby struck out with costs to the defendant/judgment-debtor.