1.Before the Court is an application dated for specific reliefs as follows:
2.The application is based on grounds set out in the application as follows:
3.The facts relied on are set out in the supporting affidavits of the applicants, respectively, the County Executive Committee Member Finance and the Chief Officer, Department of Finance, Economic Planning & Ict in the County Government of Meru, sworn on June 30, 2023 in substantially the same facts as follows:
4.In reply the Respondent/ex parte applicant filed a Replying Affidavit sworn on July 17, 2023 setting out the history of the case as follows:
5.The applicants responded to the Replying Affidavit by Further Affidavits sworn on August 3, 2023 in terms as follows:
6.Counsel for the parties made oral arguments urging their respective positions at the hearing of the application on August 11, 2023 and ruling was reserved. For the applicants, counsel emphasized, in his submission, alleged misconception of the foundational suit which gave rise to the judicial review proceedings the basis of the execution proceedings herein and the apparent denial of opportunity to be heard for the new officials of the County Government which came into power after the August 2002 elections. Citing Clause 6 of the Transitional and Consequential Provisions of the Constitution of Kenya 2010, Counsel urged that the suit should have been made against the National Government and not the County Government of Meru. On the warrants of the arrest, it was urged that it was a travesty of justice that the applicants who were the newly appointed office holders under the new County Government which had only been in office for barely one year, had not been accorded an opportunity to be heard.
7.In response, the respondent’s counsel urged that the judgment and orders for execution were made against the respondents in their official capacity which is the capacity in which the offices of the County Government in charge of financial matters for the implementation of the Judgment made in the trial court Maua CMCCC No 15B of 2013, DK (suing as next friend on behalf of his minor son HM) versus The County Government of Meru & John Mithika, which a judgment against the County Government of Meru. Counsel cited section 134 of the County Government Act, and submitted that under Act the County Government inherited the functions, rights and obligations of the local authorities under the repealed Local Government Act, cap 265, and Clause 6 of the Transitional and Consequential Provisions of the Constitution of Kenya 2010 did not apply in this suit.
Whether suit against County Government was competent
8.Counsel for the applicants invited the court to consider that the suit giving rise to the liability of the County Government and the subsequent judicial review proceedings was incompetent and it ought to have been field against the national Government.
9.There is no valid appeal from the Judgment of trial court made on October 23, 2018 as observed in the Court’s ruling of July 28, 2022, the Memorandum of Appeal was field 3 years after the judgment in contravention of section 79 G of the Civil Procedure Act. There is no appeal from the order of Mandamus given by this court in these proceedings on November 15, 2021. The having made the order for Mandamus on November 15, 2021 and subsequently declining the application for stay of execution pending appeal in its ruling of July 28, 2022, the Court became functus officio on the question of these judicial review proceedings and application for stay of execution pending appeal.
11.However, in deference to the argument by the Counsel for the applicant Clause 6 of the Sixth Schedule of the Constitution does not pass the obligation to meet the decree in this case to the national Government of the Republic. The Clause only applies to rights and obligations arising and subsisting immediately before the coming into effect of the new Constitution 2010. The clause, with respect, has no application to the proceedings before this court which was filed, heard and determined after the Constitution of Kenya has come entered into force.
12.Clause 6 of the Sixth Schedule on Transitional and Consequential Clauses provides as follows:The clause leaves the responsibility to pay the decretal sum subject of these proceedings exactly where it was at the end of the trial and judgment in the trial court with the County Government of Meru which was the defendant and judgment debtor in the suit by virtue of the Judgment delivered on 23/10/2018.
13.Even if according to the judgment in Maua CMCCC No 15B of 2013, DK (suing as next friend on behalf of his minor son HM) versus The County Government of Meru & John Mithika, the cause of action is shown to have arisen following a motor vehicle accident on July 4, 2010 before the new Constitution came into effect, and consequently against the relevant local authority, the determination by judgment which gave rise to the obligation to pay was made on long after the new Constitution October 23, 2018 and against the respondent County Government as the 1st defendant!
14.Then there is section 134 of the County Governments Act 2012 that repealed the Local Government Act cap 265 and the county governments inherited the functions, (and I consider rights and obligations) of the local authorities previously existing before the establishment of the County Governments under the new Constitution.
15.However, this not being an appeal against the decision of the trial court and this court having already made an order for mandamus, consideration of this question is merely obiter.
Procedure of arrest and detention in execution of decrees/orders of court
16.The Court may only examine whether the process for obtaining orders for the arrest and detention of persons in execution has been followed in the circumstances of this case. The Court’s power to order arrest in execution is generally provided for under section 40 (1) of the Civil Procedure Act as follows:
Facts of the case
17.On the facts of this case, the warrants were issued on May 18, 2022 following a Notice to Show Cause (NTSC) dated March 21, 2022 following an application for execution dated March 17, 2022. On application for stay of enforcement of the warrants of arrest, the court by its ruling of 28/07/22 gave the respondent CECM for Finance, Economic Planning and ICT Hon Titus Ntuchiu for 14 days to allow them make arrangements to pay.
18.By letter dated April 6, 2023, Counsel for the ex parte applicant applied for re-issue of the warrants in the following terms
19.The deputy Registrar of the Court then issued the warrants dated April 17, 2023 which are the subject of this application. The warrants were prepared by the Counsel for the ex parte applicant for signature by Deputy Registrar and they were in the names of the applicants, the new officials in the respective departmental positions of the County Government established following the 2022 elections, as the persons to be detained in execution of the decree, as shown in the Recital to the Warrant that:
20.The only question which remains is whether the ex parte and the applicant Deputy Registrar of the Court in reissuing the warrants of arrest of the applicants in execution of the decree herein followed the provisions of the Civil Procedure Rules therefor.
21.Order 22 Rule 18 of the Civil Procedure Rules makes the following exacting procedure for notice to show cause in certain cases:
22.The thread that runs through the cases is expected change of circumstances with regard to time, capacity and capability to meet the decree, which could have created sufficient case against execution such as where decree is fully or partly satisfied, legal representative of the party to the decree may have and the ‘attachment of salary or allowance of any person’ is considered such a grave matter that should not be executed without notice to the affected person so that they be heard should there exist any sufficient reason against the execution by way of arrest and detention.
23.Counsel for the ex parte applicant submitted that she applied for reissue of the warrants because the judgment and orders for execution had been previously obtained against the office, not the holder of the office, of the respective respondents. The reality of the situation is however, that there has been change in government at the County Government and the officers of the County Government who hold the offices against whom the judgment and orders for execution were obtained are not he same persons. Therein lies the imperative of Order 22 Rule 18 of the Civil Procedure Rules to protect and give hearing to affected persons who may come into office which is loaded with obligations to pay or discharge other obligation of which he had no prior notice before assumption of office. He must be given an opportunity to relate to the obligation and seek way as to discharge the obligation before it can be said that he has refused to comply thereby defying the judgment or order of the court.
24.The Proviso against giving a Notice to Show Cause applies where there has been within one year an order against the debtor or the legal representative who is sought to be committed to jail. It does not with respect apply where there has been change of the legal representative as here, in that although it the same offices of County executive Member for Finance, Economic Planning and ICT and its Chief Executive Officer, they were not the legal representatives of the County Government in office during the previous execution orders. To proceed against them without giving them an opportunity to be heard through a Notice to Show Cause under Order 22 Rule 18 of the Civil Procedure Rules is in the respectful view fo this court, an abuse of discretion and process of the court.
25.The method of request by letter for re-issue of warrants was appropriate in the circumstances of the case and it may have misled the court into not considering that there were different occupants in the offices of the respondent and grant opportunity to show cause as it is permitted to do under Order 22 Rule 31 of the Civil Procedure Rules, significantly for occasions such as the present, as follows:
26.The ‘procedure’ of the reissue of the warrants against new officials of the county government who had not had opportunity to show cause why execution should mot issue against them in the context of the change of county government following an election denies the new official an opportunity to be heard and to demonstrate any sufficient cause as prescribed under Order 22 rule 34, which provides as follows:
27.In the circumstances of the change of County Government, it is not be possible to conclude without hearing the new officials, that there is willful default to pay as required under Order 22 rule 34 (2) (b) of the Civil Procedure Rules, (highlighted above). Even though they have inherited the obligation by way of judgment in the Maua Chief Magistrate’s Court and the Order for Mandamus from this court, the County Government and its officials may have sufficient explanation for delay in effecting payment by way of any necessary budgetary arrangements and rearrangements on which they ought to be heard, even though, as regards the finding of obligation to pay the decretal sum, this court is upon the grant of mandamus and refusal of stay of execution, become functus officio.
28.Accordingly, for the reasons set out above, the Court makes the following orders1.The Warrant of Arrest dated April 17, 2023 issued by the Deputy Registrar on for the arrest and detention of the applicants named herein is set aside.2.The ex parte applicant decree holder is at liberty to apply for execution of the decree and order for Mandamus herein against the County Government and its new officials in accordance with the law.3.The Deputy Registrar is directed upon such application for execution to give a Notice to Show Cause to the respondents therein for consideration by the High Court on a date convenient to the parties and the Court in accordance with Order 22 Rule 31 of the Civil Procedure Rules.4.The costs of this application shall be costs in the Cause.Order accordingly.