Case ID:180023

Republic v Speaker Migori County Assembly & 2 others [2021] eKLR

Case Metadata

Case Number:

Judicial Review 10 of 2020

Parties:

Republic v Speaker Migori County Assembly, Clerk Migori County Assembly & County Assembly Public Service Board Migori

Date Delivered:

14 Jul 2021

Case Class:

Civil

Court:

High Court at Kisumu

Case Action:

Ruling

Judge(s):

Fred Andago Ochieng

Citation:

Republic v Speaker Migori County Assembly & 2 others [2021] eKLR

Court Division:

Judicial Review

County:

Kisumu

Extract:

0

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 KISUMU

JUDICIAL REVIEW NO. 10 OF 2020

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

VERSUS

THE SPEAKER

MIGORI COUNTY ASSEMBLY....................................1

ST

RESPONDENT

THE CLERK

MIGORI COUNTY ASSEMBLY........................................2

ND

RESPONDENT

THE COUNTY ASSEMBLY

PUBLIC SERVICE BOARD MIGORI.....3

RD

RESPONDENT

RULING

The application dated 6

th

August 2020 is for leave to file an application for an order of

Mandamus

against the three Respondents, seeking to compel them to comply with the Judgment dated 3

rd

October 2019.

1.

The said Judgment was delivered in the case of

JAMES AGGREY MWAMU Trading As MWAMU AND COMPANY ADVOCATES Vs MIGORI COUNTY ASSEMBLY, MISC. APPLICATION NO. 103 OF 2018

.

2.

In the alternative, the Applicant sought orders that the 1

st

and 2

nd

Respondents be jailed for Six (6) Months, for failure to pay the decretal amount of Kshs 7,519,282.40 together with interest.

3.

In the further alternative, the Applicant sought an order for the attachment of Account No.

1253455813

at

KCB

Migori Branch: the said account was said to belong to the 3

rd

Respondent.

4.

When canvassing the application, Mr. Mwamu advocate pointed out that the Applicant was entitled to seek leave to compel the Respondents to make payment.

5.

In answer to the application, Mr. Kanyangi, the learned advocate for the Respondents, submitted that it would be wrong to compel any of the Respondents to make payment for a judgment arising from a case to which none of them was a party.

6.

As far as the Respondents were concerned, the Judicial Review proceedings herein ought to have been instituted against the Judgment-Debtor, which is the

COUNTY ASSEMBLY OF MIGORI

.

7.

Instead of taking action against the said County Assembly of Migori, the Applicant took steps against the Speaker and the Clerk to the County Assembly, as well as the Public Service Board.

8.

The Respondents pointed out that whilst the County Assembly played a legislative role, the Public Service Board was the Administrative Wing of the County Assembly.

9.

It was the understanding of the Respondents that the Assembly and the Board were separate bodies, which had separate functions. Therefore, because there was no judgment against any of the Respondents, they believe that there would be a miscarriage of justice if the court were to compel them to pay something owed by an entity which was separate from them.

10.

But the Applicant submitted that it was the Respondents who were, by law, supposed to comply with orders which had been made against civic bodies.

11.

The Applicant emphasized that pursuant to the

Public Finance Management Act

, as read together with the

County Government Public Management Act

, the Accounting Officer of the County Assembly is the Clerk to the County Assembly.

12.

The understanding of the Applicant was that the Clerk to the County Assembly has the authority to make payment; and that in order to initiate steps for payments, the Clerk (in his capacity as the Secretary to the Public Service Board), would work with the Speaker (in his capacity as the Chairman of the said Board).

13.

In the circumstances, the Applicant submitted that it was now the responsibility of the Respondents to show cause why they had not given the necessary authorization.

14.

I have given careful consideration to the application.

15.

In my considered view, the Applicant had the responsibility of making the decision concerning the person whom he deemed to be the Accounting Officer of the County Assembly.

16.

Once the Applicant had determined the identity of the Accounting Officer, he had no obligation to enjoin other persons or officers, just because such other persons or officers had the mandate to give the requisite authorization to the Accounting Officer.

17.

The interest of the Applicant is to receive payment. Therefore, the order of

Mandamus

can only be directed against the officer who has the duty to make the payment, and whose obligation to act is plainly defined.

18.

In the case of

REPUBLIC Vs COUNTY CHIEF OFFICER, FINANCE & ECONOMIC PLANNING, NAIROBI CITY COUNTY, EX PARTE STANLEY MUTURI, MISC. CIVIL APPLICATION NO. 221 OF 2016

, Odunga J, held as follows;

“It is true that the County Executive

in Charge of Finance is the one under

obligation to pay funds, in his

capacity as the accounting officer.”

19.

In the case of

REPUBLIC Vs COUNTY SECRETARY, MIGORI COUNTY GOVERNMENT & ANOTHER, HIGH COURT MISC. CIVIL APPLICATION NO. 3 OF 2017

, Mrima J. also came to the conclusion that the accounting officer for the Department of Finance is the Chief Officer who is responsible for administration, as it is he who is responsible for managing the finances of that department.

20.

Meanwhile, in the case of

COUNCIL OF GOVERNORS & OTHERS Vs THE SENATE, PETITION NO. 413 OF 2014

, the Court held as follows;

“As regards the accounting officer for

the County Assembly, Section 148 (4)

of the Public Finance Management

Act provides that;

‘

The Clerk of the County shall

be the accounting officer of the

County Assembly.’

…………….

It therefore follows that the person

who has overall financial obligation

for the purposes of the affairs of a

County Government must be the

County Executive in Charge of

Finance and unless he shows

otherwise, he is the one under

obligation to pay funds, in the

capacity as the accounting

officer.”

21.

Based on those decisions, I find that neither the Speaker of the County Assembly nor the County Assembly Public Service Board are the accounting officer for the County Assembly.

22.

In the result, the application seeking leave to institute

Mandamus

proceedings against the 1

st

and the 3

rd

Respondents is dismissed.

23.

The Applicant will pay costs of the application to those 2 Respondents.

24.

However, as the Clerk to the County Assembly is the accounting officer, I grant leave to the Applicant to institute

Mandamus

proceedings against the 2

nd

Respondent.

25.

As regards the costs in that respect, the same shall abide the outcome of the substantive application. If the said substantive application is successful, the costs of the application herein shall be awarded to the Applicant. But if the substantive application is unsuccessful, the Applicant will pay to the 2

nd

Respondent herein, the costs of the application dated 6

th

August 2020.

DATED, SIGNED AND DELIVERED AT KISUMU

THIS 14TH DAY OF JULY 2021

FRED A. OCHIENG

JUDGE