Republic v The Speaker Migori County Assembly & 2 others

requiring that Applicant be paid Kshs. 1,365,209,80 2. That in the alternative, the 1 st and 2nd Respondents be committed to civil jail for six months for failure to pay the aforesaid amount together with interest 3. That in the alternative, the court be pleased to attach account number 1253455813 KCB Migori Branch belonging to the 3rd Respondent 2. The Applicant’s bill of costs in Kisumu Industrial Court No. 322 of 2014 Francis Nyainda v County Assembly of Kisumu was taxed at Kshs. 1,365,209,80 and a certificate of costs thereof was issued on 20 th August, 2018. 3. By an order dated 04 th June, 2019, judgment was issued in Misc. 108 Of 2018 James Aggrey Mwamu T/A Mwamu & Co. Advocates v Migori County Assembly in terms of the certificate of costs hereinabove for the sum of Kshs. 1,365,209,80 together with interest at court rates from 04th June, 2019. 4. The issue for determination is whether this Court ought to grant the orders sought herein. 5. Section 148. of the Public Finance Management Act, 2012 provides as follows: (1) A County Executive Committee member for finance shall, except as otherwise provided by law, in writing designate accounting officers to be responsible for managing the finances of the county government entities as is specified in the designation. (2) Except as otherwise stated in other legislation, the person responsible for the administration of a county government entity, shall be the accounting officer responsible for managing the finances of that entity. (3) A County Executive Committee member for finance shall ensure that each county government entity has an accounting officer in accordance with Article 226 of the Constitution. (4) The Clerk to the county assembly shall be the accounting officer of the county assembly. (emphasis added). 5. It must always be remembered that a judicial review application is neither a criminal case nor a civil suit hence the application ought to be brought against the person who is bound to comply with the orders sought therein (See Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County Ex Parte Stanley Muturi [2016] eKLR). 6. Judgment in Misc. 108 Of 2018 James Aggrey Mwamu T/A Mwamu & Co. Advocates v Migori County Assembly was entered against the Migori County Assembly whose accounting officer is the Clerk to the County Assembly who is the proper party to this cause. 7. Migori County Assembly appointed counsel to represent it in this cause. I am therefore persuaded that the decree in Misc. 108 Of 2018 James Aggrey Mwamu T/A Mwamu & Co. Advocates v Migori County Assembly was served on the Clerk to the County Assembly, the 2nd Respondent herein. 8. Obedience of a court order is fundamental to the administration of justice and the rule of law. The 2 nd Respondent has not offered any explanation for failure to settle the decretal sum. The fact that the 2 nd Respondent intends to challenge the judgment and the decree is not a bar to execution of the same. 9. Accordingly, it is hereby ordered THAT: 1. An order of Mandamus be and is hereby issued compelling the 2 nd Respondent to comply with the judgment of Justice Ochieng dated 04th June, 2019 in Misc. 108 Of 2018 James Aggrey Mwamu T/A Mwamu & Co. Advocates V Migori County Assembly requiring that Applicant be paid Kshs. 1,365,209,80 2. The 2nd Respondent is directed to comply with Order (1) above within 60 days from the date hereof 3. The prayers for committal to civil jail and attachment of 3 rd Respondent’s account number 1253455813 KCB Migori Branch cannot be made by way of a judicial review application and are therefore declined 4. 2nd Respondent shall bear the costs of this cause DATED AND SIGNED THIS 20th .DAY OF February 2020 T. W. CHERERE JUDGE

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Read in open court in the presence ofCourt Assistant - Okodoi For the Applicant - Ms. Adwar For the Respondents - N/A

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