The High Court has ordered the Nairobi County Government to pay a company associated with the Kenya Revenue Authority (KRA) Chairman Anthony Ng’ang’a Mwaura more than Sh500 million.
Constitutional and Judicial Review Judge John Chigiti, in a judgement delivered on December 21,2023, allowed an application by Mr Mwaura filed on March 3, 2023 directing the county government to settle a disputed amount of Sh539, 557, 548 for services rendered by Hardi Enterprises Limited. Mr Mwaura is named as a director of the company.
Hardi Enterprises had in the application sought orders to compel the county government to settle the amount arising from a decree issued by the High Court in Nairobi on July 29, 2021 following a ruling in its favour on June 24, 2021.
The company, according to evidence tabled in court, said it offered services to the water and sewerage department which the city county contested during Governor Mike Sonko’s time in office.
Hardi Enterprises named the city country secretary, chief officer water and sewerage and chief finance officer as respondents in the constitutional and judicial review suit.
The judge noted that a demand for payment was made but the county government failed to settle the contractual payment.
Justice Chigiti affirmed that no other evidence was required to demonstrate that City Hall had failed to perform a public duty under section 21(3) of the Government Proceedings Act.
“The respondents’ (Nairobi County) argument that it is unable to pay as a result of lack of budgetary allocation, has no place in judicial review cases,” said the judge.
Other than the requests and demands for payment, Mr Mwaura submitted that he made several efforts meetings and letters to have the devolved unit settle the lump sum but was unsuccessful.
But the county government opposed the case saying Hardi Enterprises sought for the payment of the colossal amount despite the services allegedly rendered having been contested.
Additionally, the court was informed that the hefty amount the firm was pursuing required the funds to be provided by the national government and factored in the county budgetary allocation.
“There has been no refusal to pay the decretal sum, only that there are no funds at the moment to satisfy the decree,” said the county in one of its response to the lawsuit.
City Hall argued that despite acknowledging that there were negotiations between the parties, it accused Mr Mwaura of acting in bad faith by commencing the court case yet he continued to rely on letters from the office of the County Attorney to support his civil suit.
According to the judge, Section 21(1) of the Government Proceedings Act “does not say that settlement of a decree is subject to a budgetary allocation to any ministry or government department in any particular financial year.”
He said the only available route that was open to the applicant (Hardi Enterprises) to pursue its claim, was under Section 21(3) of the Act through the order of mandamus.
Mr Mwaura, his wife Rose Njeri and Mr Sonko are separately charged alongside other suspects with corruption after allegedly embezzling Sh357 million from Nairobi County through dubious contracts.
There have been attempts to drop Mr Mwaura and his companies from the case but the application was rejected by trial magistrate Eunice Nyutu.
The magistrate ruled that it would be discriminatory to discharge Mr Mwaura, Ms Njeri and his firms and leave other accused persons to face the charges, yet they are the main suspects having been accused of illegally acquiring public funds through irregular tenders.
They are accused of unlawfully acquiring Sh357 million from Nairobi County in respect of a tender number for the hiring of heavy equipment and vehicles.
The couple allegedly received the public funds on diverse dates between July 5, 2018 and March 28, 2019.
Mr Mwaura and his spouse are also facing charges of laundering relating to Sh55 million allegedly received from Nairobi County.
