1.The ex parte Applicant herein is the firm of Otieno, Ragot & Company Advocates (herein referred to as “the Applicant”), and their claim vide their Notice of Motion dated 1st December, 2021 is that the applicant advocate rendered legal services to the now defunct Municipal Council of Kisumu in Kisumu High Court Civil Case No. 26 of 2005 between Municipal Council of Kisumu,(the 3rd Respondent herein being the successor in title to the defunct Municipal Council of Kisumu v National Housing Corporation.
2.It is averred and deposed that the said client failed to pay to the advocate the legal fees thereby forcing the advocate to file its advocate client bill of costs dated 27th November 2020 vide Kisumu High Court Misc Civil Cause No. 83 of 2020 which was taxed on 23.2.2020 and a Certificate of Costs issued, upon which judgment was entered in favour of the advocate/ applicant, adopting the Certificate of costs and a decree issued and dated 9.6.2021 followed by a Certificate of Order Against the Government dated 8.9.2021.
3.The Applicant/Advocate claims that despite service of the said decree and Certificate of Order Against the Government upon the Respondents, they have refused failed and/or neglected to comply with the court orders and or satisfy the decretal sums.
4.The Applicant advocate consequently filed an application for leave to institute these judicial Review proceedings for orders of mandamus to compel the respondents to settle decree of the court and vide Kisumu HC MIC Application No E006 of 2021, leave was granted on 10th November, 2021 after which this substantive Notice of Motion dated 1st December, 2021 was filed on 1/12/2021. The applicant prays to this court to issue judicial review orders of mandamus compelling the Respondents to comply with their statutory and constitutional duty to obey court orders and settle the sums due, against the County Secretary and County Executive Committee Member in charge of Finance as well as the 3rd Respondent County Government of Kisumu respectively, as the said Respondents are the ones vested with the statutory duty to pay funds owed by the Kisumu County Treasury. The Applicant is seeking the following specific orders against the Respondents:1.An Order of Judicial Review by way of Mandamus do issue to compel the County Secretary for the County Government of Kisumu, The County Executive Member for Finance, County Government of Kisumu and the County Government of Kisumu, the 1st, 2nd and 3rd Respondents herein respectively to pay to the applicant the sum of Kenya shillings three hundred and seventy seven million, eight hundred and seventy three thousand, one hundred and ninety three and forty cents 377, 873,193.40) together with interest at court rates of 14% per annum from 13.9.2018 until payment in full, together with costs of kshs 47,262 awarded in HC Misc Appl No. 83 of 2020 between the applicant herein and the 3rd Respondent herein.2.The costs of this application be borne by the Respondents herein.
5.The Applicant relied on the statement of facts dated 1st October 2021 and a verifying affidavit sworn on the same date by David Otieno Advocate, the firm’s Partner, to which he annexed the Certificate of Order Against the Government, Certificate of costs and Decree. The applicant advocate also swore another affidavit on 12th May 2022 annexing the pleadings and documents filed in HC Misc E006 of 2021 wherein leave was obtained to institute these proceedings and the amended certificate of order against the government.
6.The 1st, 2nd and 3rd Respondents did not oppose the application despite service of the same upon them as evidenced by the Affidavit of service duly filed in court.
7.The application was argued orally and only the applicant submitted as the Respondents did not appear for the hearing. Mr. Otieno David Advocate submitted on behalf of the applicant firm reiterating the contents of the application.
8.I have considered the Applicant’s application as argued orally. The issues for determination are whether the Respondents are under a public duty and obligation to satisfy the decree and order issued in favour of the Applicant, and if so, whether the Applicant is entitled to the relief of mandamus sought to compel the Respondents to settle the amount due.
9.Execution proceedings against the National and County Governments is governed by Section 21 of the Government Proceedings Act, which provides that:
10.In Republic vs Kenya National Examinations Council ex parte Gathenji and Others, (1997) eKLR the Court of Appeal rendered itself as follows regarding judicial review orders of Mandamus:
11.Thus, for a court to grant an order of mandamus, the applicant must demonstrate to court that the Respondent has a public and statutory duty which duty the Respondent has failed or neglected to fulfill. The decision in Republic v Kenya National Examinations Council exparte Gathenji and Others, (supra) clarifies the nature of the remedy of mandamus. In Soloh Worldwide Inter-enterprises vs County Secretary Nairobi County and Another (2016) eKLR, it was held that the person who had the overall financial obligation for the purpose of the affairs of the county government must be the county executive in charge of finance and unless he shows otherwise, he is the one under the obligation to pay funds in the capacity as the accounting officer. Further, that jurisprudence on the subject of the order of mandamus demands that where there is a breach of public duty or power, the Court must compel the public authority to perform the duty imposed by statute.
12.It is not in doubt that the law bars the applicant herein from executing against the Government. This is the stipulation in section 21 of the Government Proceedings Act Cap 40 Laws of Kenya. The above section has been interpreted by the Courts in various decisions. In Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza e KLR, the High Court stated as follows on the issue:
13.Order 29 Rule 3 of the Civil Procedure Rules, 2010 provides for the application for a certificate under section 21 of the Government Proceedings Act as follows:
14.As correctly observed in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza (supra), the Certificate of Order against the Government is not only a statutory requirement for a public statutory duty to crystalize, but it is also a condition precedent to the satisfaction or enforcement of decrees issued against the Government. Section 21 of the Government Proceedings Act provides that the Certificate of Order against the Government should be issued by the court after the expiry of 21 days from the date of entry of the judgment. Once the Certificate of Order against the Government is served, section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereto.
15.It therefore follows that the only effective remedy for a decree holder, in proceedings against the government, where there is default in settlement of decree, is that of judicial review order of mandamus. See also in the cases of Republic vs Attorney General & Another Exparte James Alfred Koroso (2013) eKLR, Republic vs County Secretary, Nairobi City County & Another Exparte Wachira Nderitu Ngugi & Co Advocate (2016) eKLR, and Republic vs County Chief Officer, Finance & Economic Planning, Nairobi City County Exparte Stanley Muturi (2017) eKLR where similar holdings were made.
16.In the instant case, there is uncontroverted evidence that on 4.10.2021 as per the Received Date stamp for the said date, the County Government of Kisumu was served with the amended Certificate of Order Against the Government, dated 11.5.2022, decree passed by Jacklyne Kamau J on 9.6.2021 and demand for payment letter dated 10.9.2021 in KSM HC MISC APPL No. 83 of 2020 through the County Attorney as required under Section 21 of the Government Proceedings Act. I observe that there is some mix up of documentation in the series files but my perusal of the four files before me has shown that there are specific certificates of taxation, decree and certificate of order against the government in each file.
17.The County Government of Kisumu is one of the Counties established under Article 6 of the Constitution and the First Schedule to the Constitution, and is constitutionally recognized as a distinct government by the said Article. In addition, the Government Proceedings Act as amended adding sub section (5) makes reference to the application of the Act to county Governments with necessary modifications.
18.Therefore, as to whether the Respondents herein are under a duty to pay the decreed sum of money as per the Certificate of Order Against the Government, an order of mandamus is normally issued when an officer or an authority by compulsion of law or statute is required to perform a duty, and that duty, despite demand in writing, has not been performed. Further, execution proceedings against a government or public authority under the Government Proceedings Act can only be as against the accounting officer or chief officer of the said government or authority, who is under a statutory duty to satisfy a judgment rendered by the Court against that body. This was the holding in Republic vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security  e KLR that:
19.Section 44 of the County Government Act establishes the office of the County Secretary who is the head of the county public service. On the other hand, Section 103 of the Public Finance Management Act No. 18 of 2012 also establishes the County Treasury comprising of the County Executive member of Finance, the Chief Officer and the departments of the County Treasury responsible for finance and fiscal matters. Under section 103(3) of the said Act, the County Executive Committee Member for Finance is the head of Treasury, and is thus the one responsible for matters finance in the County.
20.In view of the above legal provisions, I find and hold that in the instant case, the 1st and 2nd Respondents are in law, jointly responsible for the satisfaction of Court orders and decrees on payment of money owed by the County Government of Kisumu by virtue of their roles and functions. In addition, the decretal sum due from the Respondents in the present application has not been disputed, and the Applicant in this respect annexed served copies of the Certificate of Order against the Government, decree and Certificate of costs as taxed and awarded in the named KSM HC MISC CAUSE NO 83 of 2020 which is the subject of this application.
21.With uncontroverted evidence that the Respondents were served with a Certificate of Order against the government, decree, certificate of taxation and demand for settlement of the taxed and decreed costs being legal fees awarded to the applicant advocate for the services rendered to the Respondent being the successor in title to the defunct Municipal Council of Kisumu, which Certificate of Order against the government was sufficient to alert the Respondents that the debt is due to facilitate payment; and if the Respondents were in doubt as they have the office of County Attorney, they could have verified the details from the available court records, I find that there is no reason given by the Respondents as to why they have not settled the outstanding decree in favour of the Applicant advocate, which settlement is the 1st and 2nd Respondent’s statutory obligation to satisfy decrees and orders of the Court as decreed against the 3rd Respondent.
22.The Government Proceedings Act imposes a statutory duty on the 1st and 2nd Respondents to satisfy the decretal sums due to the Applicant upon compliance with the procedure set out in section 21 of the Act. That duty is not discretionary. It is mandatory in nature and there is no exemption. Not even the lack of budgetary allocation can absolve the 1st and 2nd Respondents of their duty to pay the decretal sum as was stated in the case of Republic vs Principal Secretary, Ministry of Defence & Another ex parte David Gitau Njau & 9 Others, (supra) and I concur that:
23.In conclusion, this Court therefore finds that as judgment was already entered in favour of the Applicant advocates with respect to the demanded decretal amount and costs; the procedure stated in section 21 of the Government Proceedings Act having largely been followed; and there having been service of the decree, Certificate of Order Against the Government and demand for payment made, there is a duty upon the 1st and 2nd Respondents who are the relevant accounting officers for the 3rd Respondent, to pay a debt as decreed by a competent Court of law to be due and payable by them on behalf of the 3rd Respondent.
24.In the premises, I find that the Applicant’s Notice of Motion dated 1st December, 2021 is merited. I allow it and make the following orders:a)That Judicial Review Order of Mandamus is hereby issued directing the County Secretary to the County Government of Kisumu and the County Executive member in charge of Finance, County Government of Kisumu compelling the said 1st and 2nd Respondents to comply by paying to Otieno, Ragot & Company Advocates the decretal sum of Kenya shillings three hundred and seventy seven million, eight hundred and seventy three thousand, one hundred and ninety three and forty cents (377, 873,193.40) with interest at 14% p.a from 13.9.2018 until payment in full , together with costs of Kshs 47,262 awarded in Kisumu HC Misc Appl No. 83 of 2020 between the applicant and the 3rd Respondent The County Government of Kisumu.b)The Applicant shall have the costs of the Notice of Motion dated 1st December, 2021 which I hereby assess at Kshs 20,000, to cover their disbursements.
25.This file is closed as enforcement proceedings can only be conducted in a separate file where separate orders of contempt of Court orders may be sought where there is noncompliance with these orders.
26.This file is closed.