Case ID:171108

Republic v Principal Secretary, State Department of Industrialization & 2 others Ex-Parte Geofrey Gathua Ndegwa t/a Gesin General Supplies & Rogena General Supplies [2021] eKLR

Case Metadata

Case Number:

Judicial Review Applications 24 & 25 of 2019 (Consolidated)

Parties:

Republic v Versus Principal Secretary, State Department of Industrialization, Kenya Industrial Training Institute, Nakuru & Attorney General; Ex-Parte Geofrey Gathua Ndegwa t/a Gesin General Supplies & Rogena General Supplies

Date Delivered:

25 Feb 2021

Case Class:

Civil

Court:

High Court at Nakuru

Case Action:

Judgment

Judge(s):

Hilary Kiplagat Chemitei

Citation:

Republic v Principal Secretary, State Department of Industrialization & 2 others Ex-Parte Geofrey Gathua Ndegwa t/a Gesin General Supplies & Rogena General Supplies [2021] eKLR

Court Division:

Judicial Review

County:

Nakuru

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

JUDICIAL REVIEW APPLICATIONS NO. 24 AND 25 OF 2019

REPUBLIC.................................................................................................APPLICANT

VERSUS

THE PRINCIPAL SECRETARY, STATE

DEPARTMENT OF INDUSTRIALIZATION............................1

ST

RESPONDENT

KENYA INDUSTRIAL TRAINING

INSTITUTE, NAKURU...............................................................2

ND

RESPONDENT

THE HON. ATTORTNEY GENERAL......................................3

RD

RESPONDENT

AND

GEOFREY GATHUA NDEGWA

T/A GESIN GENERAL SUPPLIES &

ROGENA GENERAL SUPPLIES..............................EX-PARTE APPLICANT

JUDGEMENT

1. There are two sets of applications herein namely number

24 of 2019

whose parties are as shown above. The second application number

25 of 2019

are similar in nature save that the applicant is

NAFTALI KANEGEEI T/A COMPUTER ARE US, GOODWILL ENGINEERING WORKS, CANLY AUTO

SERVICES 7 CANLY SUPPLIES

and the respondents are the same. The facts are similar save that the amount are different. The court shall proceed to make findings on

No.24

and the same shall apply

mutatis mutandis

to

Number 25

. The parties in any even have made one joint submissions over the two applications.

2.

The Ex-parte applicants Notice of Motion dated

18

th

November 2019

seeks the following writs;

a) An orders of

mandamus

compelling the respondents to pay the balance on the applicant’s judgement debt in the sum of Kshs.2,806,812 together with costs of Kshs.218, 050 and interest arising from a consent judgement in this suit.

b) An order of

mandamus

compelling the respondents to transfer the sum of Kshs. 3,024,862 from the 2

nd

respondent’s bank account at Kenya Commercial Bank Nakuru main branch account number 11129777716 such that the balance goes below the sum of Kshs. 3,024,862 until the debt is repaid in full.

3. The applicant prayed for the costs of this suit as well.

4. The application is premised on the statement as well as the affidavit of

Geoffrey Gathua Ndegwa

the proprietor of the businesses.

5. The application was not opposed by the respondents by way of a replying affidavits or grounds of opposition. The only meaningful opposition was by way of written submissions by the 3

rd

respondent.

6. The facts are clear and straight forward as evidence by the annexures to the supporting affidavit. The applicant did supply goods to the 2

nd

respondent namely bread pursuant to a tender which he had won. The said goods were received and acknowledged but were not paid for.

7. The applicant was thereafter forced to file suit for the recovery of the debt. The parties vide suit

No. Nakuru CMCC 251 of 2018

entered into a consent where the 2

nd

respondent agreed to settle the decree. The respondent despite all the reminders which are on record failed to honour the obligation which necessitated the applicant to file this application.

8. As at the time the matter came before this court, there was no evidence of payment. There was no explanation on the part of the respondents why they have failed to honour their obligations.

9. The respondents in their submissions have stated that the reason why the debt has not been honoured is because they realised after the filing of the consent that there was no documentation to support the claim which was contrary to Section 21 of the Government Proceedings Act. In that regard they suspected fraud in the whole transaction and by paying the debt they would be perpetuating corruption.

10. The court has read clearly the submissions by the respondents as well as the applicant. The court takes notice that despite the respondent’s fears they have not filed any application to set aside the consent at the lower court nor taken any meaningful steps to challenge the suit at the lower court. This court cannot therefore act merely on suspicions and fears by state agencies which have the instruments to carry out their investigations and remedy the situation.

11. This court being a court of justice cannot countenance this defiance by the respondents. They cannot receive goods, utilise them happily and render the supplier suffer and forced to seek legal redress. It is too late at least in this application to allege some corruption in the deal between the applicant and the 2

nd

respondent or any other party herein for that matter.

12. As deponed by the applicant the period which the respondents have delayed must have caused pecuniary embarrassment. My brother

Majanja J

in

REPUBLIC VS. TOWN CLERK OF WEBUYE COUNTY

COUNCIL & ANOTHER HCC NO 448 OF 2006

in a similar situation rendered himself as hereunder;

13. “

On the other hand, a decree holder’s right to enjoy fruits of his judgment must not be thwarted. When faced with such a scenario, the Court should adopt an interpretation that favours enforcement and as far as possible secures accrued rights. My reasoning is underpinned by the values of the Constitution particularised under Article 10, the obligation of the court to do justice to the parties and to do so without delay under Article 159(2)(a) and (b) and the applicant’s right of access to justice protected under Article 48 of the Constitution.”

14. This court is left with no other option but to allow the application. The respondents are obliged just like any other debtor to honour their obligations. They cannot use and at the same time abuse.

15. The 4

th

and 5

th

prayers cannot be allowed for the simple reason that the statement attached is an old one and beside that there could be other obligations due to 3

rd

parties by the 2

nd

respondent who may be innocently prejudiced by the order.

16. Suffice to state that the prayers granted are sufficient in the circumstances.

17. The application is therefore allowed as follows;

a) An order of mandamus is hereby issued to compel the respondents to pay to the applicant the sum of Kshs. 1,050,814, interest of Kshs 915,072 and costs of Kshs. 218,050 totalling Kshs. 2,183,936 forthwith and or within 45 days from the date herein.

b) Cost of this application to the applicant.

18. As regards application

Number 25 of 2019

stated above the applicant Motion dated 18

th

November 2019 prayed for the following orders:

a) Orders of

mandamus

to compel the 2

nd

respondent to pay the balance of Kshs. 4,051,736 and interest.

b) The order of

mandamus

to compel the 2

nd

respondent to transfer the above sum from its account at Kenya Commercial Bank Nakuru branch No 1112977716 to the applicants account.

19. The only difference stated herein were the goods supplied which in this case were computer accessories, foodstuffs and other assorted items.

20.

For the reasons given above the application is allowed and the 2

nd

respondent herein is compelled by an order of

mandamus

to pay to the applicant the sum of Kshs. 4,051,736 together with interest forthwith and or within 45 days from the date herein. The applicant shall as well have the costs of the application.

Dated signed and delivered electronically at Nakuru this 25

th

day of February 2021.

H. K. CHEMITEI

JUDGE