Court orders Mombasa Finance CECM to pay Sh2.7m plus interest to law firm

A law firm has won a case against the County Executive Committee Member (CECM) in charge of Finance and Economic Affairs at the county government of Mombasa who was ordered to pay it Sh2.7 million for legal services rendered to the devolved unit.

Justice Yuvinalis Angima of the Environment and Land Court in Mombasa further ordered that the payment to Miller and Company Advocates will be made together with interest of 14 percent from January 22, 2025, until payment in full.

However, he suspended the order until July 1, 2026, to enable CECM-Finance and Economic Affairs to make necessary arrangements for payment of the decretal amount.

The court noted that there was no doubt from the material on record that the county government of Mombasa is truly indebted to the applicant.

“There is no indication on record of any pending reference or appeal on the issue of the county government’s liability to settle the applicant’s claim,” ruled Justice Angima.

He added that the county government was duly made aware of the certificate of order against the government through the office of the county attorney.

The court further said that neither the county government or the CECM has made any effort to settle the decretal amount and that it was also clear from the content of a replying affidavit that they were not prepared to do so without a coercive order to that effect.

“The court is satisfied that the CECM has a statutory duty to settle the decretal amount as required by law and that an order of mandamus should arise,” ruled the judge.

The court further noted that material on record shows that the respondents (county government and its officials) failed to settle the decretal amount despite the reasonable notice that was issued to them three months before the application for mandamus (order) was made.

Justice Angima ruled that the court was of the view that the respondents were merely trying to invoke technicalities of procedure to evade their obligation to settle the decretal amount.

“They do not have a genuine and bonafide defence to the applicant’s claim. As rightfully submitted by the applicant, they have no other adequate remedy other than mandamus since they cannot execute against the respondents,” ruled the court.

The court further ruled that there is no compelling reason why the respondents should not settle the decretal amount.

Miller and Company Advocates had told the court that on November 16, 2021, it was instructed by the respondents to act for the county government in a case at the Environment and Land Court.

The law firm further argued that it continued to act until the respondents failed to provide instructions necessitating it to cease acting.

It further told the court that it submitted a fee note to the respondents who refused to settle it prompting it to file a bill of costs which was taxed on January 22 last year and a certificate of costs served upon them.

Miller and Company Advocates argued that despite serving the respondents with the certificate of order they had refused to settle the amount.

It also argued that the respondents were protected by law against execution and the only viable relief against them was an order of mandamus (to compel payment).

On its part, the county government opposed the application for the orders sought by the law firm.

According to the county government, other respondents except for the CECM were wrongly enjoined in the suit since it's only the CECM who had the statutory mandate to authorize expenditure from the county treasury.

The county government argued that the application by the law firm was premature and defective as no evidence had been adduced that the respondents had refused to satisfy the decretal sum and costs awarded by court.

It also argued that the applicant had not demonstrated that service was effected upon the CECM who is the head of county treasury and the lawful accounting officer responsible for payment of county funds.

The devolved unit also argued that the CECM is bound by the Public Finance Management Act on how to plan, budget, appropriate and expend the county budget.

It argued that since the applicant did not effect service, the CECM had not appropriated nor sought the approval from the County Assembly of Mombasa for the payment of the said account.

The devolved unit also argued that the decretal sum could only be paid after it had been factored into the forthcoming budget cycle and approved by the County Assembly and that any payment by the CECM outside the budget was prohibited by the law.

However, the court noted that the office of the county attorney, as established by the Mombasa County Office of the County Attorney Act 2017, is the principal legal adviser to the County Government and is responsible for advising all the County Government departments and agencies on legislative and other legal matters.

The court further ruled that it was its view that the law firm sufficiently served all the respondents by effecting service upon the office of the county attorney who is obligated not only to represent the county government in court proceedings but to advise all departments and agencies on legal issues.

Justice Angima ruled that Miller and Company Advocates demonstrated to the court that they served the respondents with the demand for the settlement of the decree and certificate of order against the government.

The claims against other county government officials apart from the CECM were dismissed.