Argos Furnishers Ltd v County Government of Mombasa & 1 other

COUNTY SECRETARY, COUNTY GOVERNMENT OF MOMBASA .... 3RD RESPONDENT COUNTY EXECUTIVE MEMBER OF FINANCE, COUNTY GOVERNMENT OF MOMBASAS ................................................................................... 4TH RESPONDENT JUDGMENT 1. The Notice of Motion application before this court is dated 19th March 2025. The application seeks the following orders; a. That this honourable court be and is hereby pleased to grant the applicants herein an order of mandamus to compel the 1st,2nd, 3rd and 4th respondents to pay the applicant the sum of Kes 32,453,194.36 being the outstanding decretal sum and taxed costs issued in HCCC 13 of 2008, Argos Furnishers Ltd versus County Government of Mombasa, pursuant to decree of the court issued 14th August 2009 as read as read together with the consent orders of 13th February 2018 and 26th January 2022; b. That this honourable court be and is hereby pleased to order that the outstanding decretal sum and outstanding interest be paid by respondents immediately, failure to which warrants of arrest and committal to civil jail do issue against the 2nd, 3rd and 4th respondents; and c. That the costs of the application be provided for. 2. The application is premised on the supporting affidavit of Shah Susheel Rajnikant, the director of the applicant company. In the said affidavit, the deponent stated that the applicant herein initiated a civil suit against the 1st respondent’s predecessor on 29th January 2008, in HCCC 13 of 2008; Argos Furnishers Limited versus Municipal Council of Mombasa. The genesis of the suit was that the applicant carried out a hire purchase business duly registered under the Hire Purchase Act. Sometime in June 2003, the applicant and the Municipal Council of Mombasa entered into an agreement in which the applicant would revive a hire purchase scheme through a check-off scheme in which the Municipal Council of Mombasa employees were to be allowed to collect an assortment of goods from the applicant’s stores and the Municipal Council of Mombasa undertook to deduct the monthly repayment and remit the same to the applicant. It was agreed that the Municipal Council of Mombasa would retain 5% of the monthly repayments so deducted as its administrative costs and remit the balance to the applicant. 3. He further stated that on diverse dates between June 2003 and January 2007, the applicant, in performance of its obligations under the agreement, proceeded with the consent of the Municipal Council of Mombasa to issue its employees an assortment of goods valued at Kes 61,792,955. The Municipal Council of Mombasa deducted monthly contributions in the sum of Kes 47,874,057 from its employees' salaries as of November 2007. The council retained the sum of Kes 2,393,702.85 only and remitted the balance of Kes 45,480,354.15 to the applicant. Despite numerous requests by the applicant to remit the net receivable monthly contributions, the Municipal Council of Mombasa failed and neglected to remit the sum of Kes 20,720,923.84, having already been given Kes 24,759,430; it also failed to remit the sum of Kes 4,212,320 owing from its employees under the scheme. 4. He averred that on 13th March 2009, this honourable court entered a ruling against the 1st respondent on account of its own admission and struck out the defence filed by the 1st respondent. On 14th August 2009, the court also issued a decree in favour of the applicant. The applicant has made several attempts https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19310/eng@2025-08-04 2

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to carry out execution, but every now and then, the respondent files an application to delay the process. In 2017, the 1st respondent settled the decretal amount partially. The parties also agreed to compromise the decretal amount through a rebate on interest, resulting in a consent order of 13th February 2018, wherein the outstanding decretal amount plus interest of Kshs 30,000,000 was agreed to be paid. The respondent failed to honour the said consent, and on looming execution proceedings, another consent order was entered into on 26th January 2022. 5. He further averred that upon application for execution in 2023 by the applicant, the respondent filed a counter application seeking the warrants of execution to be set aside on account of compliance with Section 21 of the Government Proceedings Act. The court directed the respondents to comply with Section 21 of the Government Proceedings Act. The respondent has since refused to pay the decretal sum to the applicant, denying the applicant the right to enjoy the fruits of its judgment. He contended that the applicant also filed a party and party bill of costs, which was taxed at Kes 2,453,194.36, and a certificate of costs was issued, making the cumulative sum Kes 32,453,194.36. 6. He stated that the applicant wrote a demand letter dated 18th December 2024, through the Office of the County Attorney demanding payment of the cumulative sum, which was not responded to. The deponent averred that the applicant wishes to enforce the judgment and decree of the court through the judicial review order of mandamus, and hence the present application. It was contended that the applicant has complied with all procedures required and that unless the court compels the respondents to satisfy the decretal sum and the taxed costs the respondents will persist in their disobedience of the court orders, which action lowers the dignity of this court and the confidence of the applicant and the general public in the efficiency of the judicial process in resolving disputes. He urged the court to allow the application as prayed. 7. The applicant, through its advocates Immaculate & Co Advocates, filed written submissions dated 7th May 2025. Counsel submitted on three issues for determination, namely: whether the applicant is entitled to the order of mandamus as sought; whether the 1st to 4th respondents owe the applicant a public legal duty to act; and who should bear the costs of the application. 8. On the 1st issue, counsel reiterated the applicant’s position and submitted that the applicant sued the respondents for reasons that they are all offices established under the County Government Act, 2012, and are responsible for the County Government’s treasury and finances. It was urged that the respondents had failed to pay the applicant the sums duly owed to it and, as ordered by this honourable court, with the 1st respondent even proceeding to enter into several consents with the applicant, all in vain. Further, the respondents owe the applicant a public duty of repaying the said sums, which they have breached by failing to adhere to court orders. At the time of entering into a hire purchase agreement and the various consents, there was a legitimate expectation that the decretal sums would be paid, and therefore, having complied with all procedural requirements of serving and or notifying the respondents, it is just that the application herein is allowed as prayed. 9. On the second issue, counsel submitted that the respondents owe the applicant the duty to ensure that it has received the monies owed to it by the 1st respondent. It was urged that the 2nd to 4th respondents have the mandate to control and are in charge of the finances of the 1st respondent. Therefore, the respondents owe the applicant a public duty to act, which has not been fulfilled. 10. On the third issue, counsel relied on section 27 of the Civil Procedure Act and submitted that the question of costs is a discretionary exercise by the court. 11. In conclusion, counsel urged the court to allow the application as prayed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19310/eng@2025-08-04 3

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12. The substantive Notice of Motion dated 19th March 2025 was unopposed. It was served on the 20th March 2025 at 5:53 pm on the County Attorney through email countyattorney@mombasa.go.ke pursuant to order 5 rule 22B of the Civil Procedure (Amendment)Rules, 2020, and Rule 13 of the Electronic Case Management Practice Directions, 2020. 13. There was further service on 27th March 2025 at 10:11 hrs through email. Despite being served, the respondents did not enter an appearance nor file a response. The application was thus unopposed. 14. I note that what the applicant seeks is to enforce a judgment issued on 13th March 2009, entered on admission in HCCC NO.13 of 2008. Despite being served, the respondents did not enter an appearance nor file responses. Despite the lapse of time, the respondents did not settle the decretal sum in full, and as a result, the applicant filed the instant application. 15. Is the applicant entitled to the orders sought? In my view, it is. I rely on the case of Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) and that of Republic v Attorney General & another; Muturi (Exparte) [2022] KEHC 14313 (KLR). 16. Having obtained a decree, the applicant is entitled to payment. Since the respondents have refused to pay, an application to the court through a judicial review application is the only way it could procure payment. See the case of Republic v County Secretary of Nairobi, exparte Wachira Nderitu Ngugi & Co Advocates [2016]eKLR. 17. In my view, the applicant has been unjustly denied the fruits of a judgment in its favour. The application is therefore allowed. 18. The orders that therefore comment themselves to me are the following: 1. Order of mandamus is hereby issued compelling the 1st, 2nd, 3rd, and 4th Respondents to pay the Applicant the sum of Kes 32,453,194.36, being the outstanding decretal sum and taxed costs issued in HCCC 13 of 2008, Argos Furnishers Ltd versus County Government of Mombasa, pursuant to the decree of the court issued 14th August 2009, as read together with the consent orders of 13th February 2018 and 26th January 2022; and 2. I order that the said sums be paid to the applicant forthwith, within 30 days of the date of this judgment, failing which warrants of arrest and committal to civil jail shall issue against the 2nd, 3rd, and 4th Respondent. 19. Section 27 of the Civil Procedure Act gives this court discretion on matters of costs. Given the conduct of the respondents, I am of the opinion that there is no reason for me to depart from the principle that costs follow the event. Under the circumstances, I award the applicant the costs of the application. 20. It is so ordered. DATED AND SIGNED IN MOMBASA, THIS 4TH DAY OF AUGUST 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of:Ms Mwanzia, holding brief for Ms Immaculate, for the Applicant; No appearance for the Respondents; Arthur – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19310/eng@2025-08-04 4

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