Frank Omondi Anyiko & 35 Others v County Government of Nairobi

2,424,000.00/= instead of the full decretal amount of Kshs. 8,871,040.00/=. 4. THAT this court be pleased to set aside the certificate of order issued on 15th July 2025 and the Ruling of the Deputy Registrar’s 24th January 2025 computing the decretal amount paid as only Kshs. 2,424,000.00/= instead substitute settlement of the therewith an order decretal amount of of full Kshs. 8,871,040.00/=. 5. THAT this honourable court be pleased to re-calculate the decretal amount paid by the Respondent due to the Claimants ant and /or in the alternative the matter to be remitted to such other Taxing officer as the court may direct for re-calculation ab initio. 6. THAT the costs of this Application be in the cause. 7. Any other orders that court may deem fit. 2 The application was supported by a supporting affidavit sworn by Wambui Babu, an Advocate of the High Court of Kenya and a partner in the firm of BABU LAW FIRM, the Advocates for the Respondent /Applicant herein Respondent/Applicant’s Case 3 The Applicant avers that judgment was entered in favour of the Claimant/Respondent against it for a principal decretal sum of Kshs. 8,871,040, being payment of the Claimant’s dues for the months of June and July 2017, the Claimant’s Advocates’ fees and costs of the suit. Page 2 of 15

page 2 of 15

4 The Applicant avers that, in full and final settlement of the decretal sum, it processed and paid the entire amount of Kshs. 8,871,040/ to the Claimants/Respondents. 5 The Applicant states that a dispute subsequently arose regarding the quantum of costs payable and the amounts already settled, whereupon the matter was referred to the Deputy Registrar for scrutiny, adjudication and taxation of the costs of the suit. The matter then proceeded to taxation before any conclusive scrutiny and determination of the amounts already paid and settled by the Applicant had been made. 6 The Applicant further states that, in its Ruling delivered on 30th September 2024, this Court dismissed the Claimant’s claim for party-and-party costs. It avers that, on 21 st November 2024, the Claimants/Respondents formally intimated to the Court that they had waived and abandoned any claim to party-and-party costs, which position was duly noted by the Court. 7 It is the Applicant’s case that, notwithstanding the full settlement of the decretal sum and the dismissal and waiver of the claim for party-and-party costs, the Deputy Registrar proceeded with the taxation and delivered a Ruling on 24th January 2025. 8 The Applicant contends that, in the said Ruling, the Deputy Registrar erroneously computed the amount paid Page 3 of 15

page 3 of 15

by the Applicant as Kshs. 2,424,000, thereby creating a colossal and fictitious shortfall. 9 The Applicant asserts that the computation was fundamentally flawed as it disregarded the appropriation of costs filed by the Applicant on 6 th December 2024 in support of and as a summary to its Replying Affidavit filed on 31st July 2023. 10 The Applicant further contends that the Deputy Registrar failed to give effect to this Court’s Ruling of 30 th September 2024, which had dismissed the claim for partyand-party costs, and thereby included sums which were not legally due. It also asserts that the Deputy Registrar failed to take into account the Claimant’s waiver of costs made on 21st November 2024. 11 The Applicant states that, on the basis of the erroneous computation, the Deputy Registrar issued a Certificate of Order Against the Government on 15 th July 2025, indicating a substantial and incorrect outstanding balance. 12 It is the Applicant’s case that the said Certificate of Order is invalid, null and void as it is premised on a Ruling containing factual inaccuracies and errors. 13 The Applicant asserts that the continued existence of the Certificate falsely portrays it, being a public entity, as a debtor who has failed to satisfy a court decree, thereby Page 4 of 15

page 4 of 15

damaging its reputation and compromising its duty to safeguard public funds. 14 The Applicant further contends that the Certificate exposes it to the risk of prejudicial and unwarranted enforcement proceedings, notwithstanding that the decretal had fully that such sum been paid, and enforcement would amount to an abuse of the Court process. 15 The Applicant avers that unless this Court reviews and sets aside the Deputy Registrar’s Ruling delivered on 24 th January 2025 and the consequent Certificate of Order, it stands to suffer immense and irreparable prejudice. 16 The Applicant states that the Claimants/Respondents will suffer no prejudice if the orders sought are granted, as the application merely seeks to correct the record and reflect the true state of affairs. It further asserts that the application has been made without unreasonable delay and in utmost good faith. 17 It is therefore the Applicant’s case that, in the interests of justice, fairness and the proper administration of justice, this Court ought to grant the orders sought in the accompanying application. Claimants/Respondents’ Case 18 In opposition to the application, the Claimants/Respondents filed a Replying Affidavit dated Page 5 of 15

page 5 of 15

15th September 2025, sworn by Frank Omondi Anyiko, the 1st Claimant/Respondent herein. 19 It is the Claimants/Respondents’ case that the application lacks merit and is intended to deny them the fruits of the consent judgment. They contend that the application is an afterthought, brought to frustrate the pending execution proceedings. 20 The Claimants/Respondents further assert that the application was brought after an undue delay of about eight months from the date of the impugned Ruling and that there has been no discovery of any new and important matter or evidence relating to the consent judgment to warrant a review. 21 It is their case that there is no evidence that the Applicant has fully paid the decretal sum of Kshs. 8,871,040. They state that the Applicant only paid Kshs. 1,201,200 on 23 rd December 2022 and Kshs. 1,223,000 on 24 th February 2023, and that the payments were made after notices to show cause had been issued. 22 The Claimants/Respondents contend that there is no evidence that the Applicant paid any other sums apart from the said two payments. They further assert that the replying affidavit by Wambui Babu, annexed as WB2 in the Applicant’s supporting affidavit, does not constitute proof of payment. Page 6 of 15

page 6 of 15

23 The Claimants/Respondents further state that there is no evidence that party-and-party costs were included in the consent judgment or in the taxation. They maintain that the Certificate of Order Against the Government contains no errors or mistakes. 24 It is the Claimants/Respondents’ case that the Applicant’s dispute regarding the amount allegedly owed does not constitute a ground for review, but rather a ground of appeal. 25 In the premises, the Claimants/Respondents contend that the application is devoid of merit and ought to be dismissed. Respondent/Applicant's Submissions 26 The Respondent/Applicant submitted on three issues: whether the Deputy Registrar erred in law and in fact in the computation of the sums allegedly outstanding in the Ruling delivered on 24th January 2025; whether the Respondent/Applicant is entitled to the orders sought in the Application; and who should bear the costs of this Application. 27 On the first issue, the Applicant submitted that judgment was entered by consent on 4th November 2020 for Kshs. 8,871,040 under three heads, namely the Claimants’ dues for June and July 2017, the Claimants’ Advocates’ fees, and costs of the suit. It was submitted that the impugned Page 7 of 15

page 7 of 15

computation failed to properly account for the payments made towards each of the three heads. 28 On the first head, the Applicant submitted that it had paid Kshs. 2,289,000 on 14th January 2021 towards the Claimants’ June and July 2017 dues, which amount was apportioned and paid directly into the Claimants’ individual bank accounts. 29 It further submitted that, following reconciliation of the payments after issuance of the Notice to Show Cause, it paid a further Kshs. 1,201,200 on 23 rd December 2022 and Kshs. 1,223,000 on 24th February 2023 through the Claimants’ representative, which payments were acknowledged by the Claimants. 30 It was argued that the total net pay due under this head was Kshs. 3,871,040, while the Applicant had remitted Kshs. 4,713,200, comprising the initial payment of Kshs. 2,289,000 and the subsequent payments of Kshs. 1,201,200 and Kshs. 1,223,000. The Applicant therefore submitted that the first head of the decretal sum had been fully settled. 31 As regards the second head, the Applicant submitted that the Claimants’ Advocates’ fees had been fully settled by payment of Kshs. 2,662,040 on 23 rd February 2021. It was argued that the payment was accepted without Page 8 of 15

page 8 of 15

reservation and that no further claim under that head was subjected to taxation. 32 The Applicant therefore contended that the first and second heads of the consent judgment had been fully and conclusively settled, and that the Deputy Registrar’s failure to account for the payments resulted in an erroneous and distorted reconciliation. 33 On the third head relating to costs of the suit, the Applicant submitted that the claim for party-and-party costs had ceased to be a subsisting claim capable of taxation or enforcement. It relied on the Court’s Ruling of 30th September 2024 dismissing the Claimants’ claim for party-and-party costs, and the subsequent waiver and abandonment of the claim by the Claimants in open Court on 21st November 2024. 34 The Applicant argued that the Claimants’ waiver was voluntary, unequivocal and binding. It was submitted that waiver constitutes relinquishment of the a intentional known right and and, voluntary once made, precludes the party from subsequently asserting that right. Consequently, the Applicant contended that there was no subsisting claim for costs upon which the Deputy Registrar could properly assign a monetary value, tax or issue a certificate. Page 9 of 15

page 9 of 15

35 The Applicant therefore argued that the Deputy Registrar erred by including costs in the computation notwithstanding the Court’s Ruling and the Claimants’ subsequent waiver. It submitted that any attempt to revive or assign value to a claim that had been expressly abandoned was a nullity and contrary to the Court record. 36 On the second issue, the Applicant submitted that the impugned Ruling and the consequential Certificate of Order Against the Government were founded on three fundamental errors: failure to account for payments already made, failure to give effect to the Court’s Ruling of 30th September 2024 and the subsequent waiver, and inclusion of a claim for costs that had been extinguished. 37 It was further submitted that a Certificate of Order Against the Government is only a reflection of what is lawfully due from the record, and cannot properly stand where the underlying computation is erroneous. The Applicant urged the Court to intervene to prevent enforcement of an amount which, on the material before it, does not represent the true position between the parties. 38 On costs, the Applicant submitted that it was entitled to costs on the principle that costs follow the event. It relied on Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR, where the Supreme Court affirmed that although costs are within the discretion of the Court, they ordinarily follow the event. Page 10 of 15

page 10 of 15

39 The Applicant argued that the present application had been occasioned by the erroneous computation in the Deputy Registrar’s Ruling and the resultant Certificate of Order Against the Government and accordingly prayed that costs be awarded to it. Claimants/Respondents’ Case 40 It is the Claimants/Respondents’ submissions that they were former employees of the County Government of Nairobi whose employment came to an end upon the assumption of office by a new government, and that the Applicant failed to pay their dues, thereby giving rise to the present dispute. 41 The Claimants/Respondents submitted that, pursuant to the consent judgment entered on 4 th November 2020, judgment was entered in their favour for Kshs. 8,871,040, being their unpaid dues for June and July 2017, costs of filing the suit and legal costs for their Advocates. 42 It was submitted that, since the consent judgment, the Applicant had only paid Kshs. 1,201,200 on 23rd December 2022 and Kshs. 1,223,000 on 24th February 2023, totalling Kshs. 2,424,200. The Claimants/Respondents contended that there was no evidence before the Court demonstrating payment of any other sums. Page 11 of 15

page 11 of 15

43 The Claimants/Respondents challenged the documents relied upon by the Applicant as proof of payment, including the Replying Affidavit, the Applicant’s list of documents, the internal memoranda dated 5 th March 2019 and 25th January 2018, and the appropriation of costs. It was argued that the said documents did not constitute proof of payment of the consent judgment and, in any event, the 2018 and 2019 memoranda pre-dated the consent judgment of 4th November 2020 and could therefore not establish payment pursuant to the consent. 44 The Claimants/Respondents further submitted that no costs had been awarded to them in the matter, contrary to the Applicant’s contention. They maintained that the Court record did not support the assertion that costs had been awarded. 45 On the impugned Ruling, the Claimants/Respondents submitted that the Deputy Registrar was concerned with the outstanding balance of the decretal sum and accrued interest and committed no error in computing the amount due. They contended that the Certificate of Order Against the Government issued on 15th July 2025 properly reflected the decretal sum, payments made and accrued interest, with the outstanding balance being Kshs. 8,605,826.93. 46 The Claimants/Respondents further argued that the Applicant had not demonstrated any basis for interfering Page 12 of 15

page 12 of 15

with the consent judgment. Relying Hirani v Kassam (1952)19 EACA 131, on Kenya Commercial Bank Limited v Benjoh Amalgamated Limited [2017] eKLR and Wasike v Wamboko [1985] KECA 149 (KLR), they submitted that a consent judgment has contractual effect and may only be set aside on grounds that would justify setting aside a contract, such as mistake, misrepresentation, fraud or illegality. It was argued that none of those grounds had been established by the Applicant. 47 On review, the Claimants/Respondents submitted that Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules require an applicant seeking review to demonstrate discovery of new and important evidence, a mistake or error apparent on the face of the record, or any other sufficient reason. They contended that the Applicant had failed to establish any of the prescribed grounds. 48 It is the Claimants/Respondents’ submission that the application was devoid of merit and urged the Court to dismiss it with costs. 49 I have examined all the averments and submissions of the parties herein. The applicant has filed this application seeking a stay on the ground that the decretal sum has been fully paid and therefore there is no execution that should proceed. Page 13 of 15

page 13 of 15

50 Despite the fact that the applicant indicated that the decretal sum has been fully paid, the applicant failed to exhibit any payment details made either in form of bank transfers or bank statements that were made. The applicant sought to rely on a payment voucher which is not proof of payment. 51 The applicants also indicated that they paid kshs 2,289,000, 1,201,200/- and 1, 223,000/- which totals = Kshs 4,713,200/-. This would not also be in satisfaction of the judgment sum of kshs 8,871,040/- plus interest accrued. 52 I therefore find that the reason as to why the applicants seek stay are not viable ones. This court is not in a position to vary the certificate of costs as this is the duty of the Deputy Registrar. 53 That notwithstanding, the variation if any can only be effected after the applicant submit evidence of the payments allegedly made. I would therefore give the applicant an opportunity to appear before the DR with fresh proof of payments made if, at all, for re- evaluation within 15 days. There will be temporary stay for the said period or as may be extended by the Deputy Registrar. In default execution may proceed. Costs in the cause. Dated, Signed and Delivered virtually at Nairobi this 21st Day of September 2026. Page 14 of 15

page 14 of 15

HELLEN WASILWA JUDGE Page 15 of 15

page 15 of 15