Kilifi taxpayers have breathed a sigh of relief after the High Court in Malindi dismissed an application by a lawyer seeking payment of Sh1 billion from the county government.
Justice Stephen Githinji ruled that the case lacked merit and that the county's defence raised triable issues that warranted a full hearing given the colossal amount at stake.
“The bottom line is that summary judgment ought to only be entered in very clear-cut cases that are colloquially known as ‘open and shut’ cases. In my view, this is not such a case. In the end, I find no merit in this application,” said Justice Githinji.
The dispute between lawyer Stephens Kithi Ngombo and the county stems from an agreement the lawyer helped draft when Amason Kingi, the current Senate speaker, was governor of Kilifi.
The company and the devolved unit have been involved in a separate court battle over a breach of the agreement regarding the collection of revenue for the county.
In 2021, for example, the county went to court to prevent the company from demanding more than Sh650 million and an additional Sh2.5 million.
These funds stemmed from a dispute between the county and the firm over a breach of contract regarding the collection of revenue within the devolved unit.
In this case, the company filed a lawsuit against the county, accusing it of breaching an agreement for the collection of cess and parking fees.
The company expressed dissatisfaction with the county's termination of the agreement, which it claimed was in breach of its terms.
As a result, the firm asked the court to make an order preventing the county from terminating the agreement and also sought compensation for special and general damages.
The county, however, defended itself on the basis that it had terminated the agreement in accordance with its express terms due to the company's failure to fulfil the necessary conditions. The High Court initially ruled in favour of the company, but the county appealed the decision.
In September last year, Mr Kithi filed a lawsuit against the county, seeking billions of shillings for his role in facilitating the agreement between the company and the devolved unit.
Mr Kithi sought summary judgment against the devolved unit, stressing that the money had not been paid for nine years.
He argued that he provided the county with the fee note in 2021, but the devolved unit neither raised any concerns nor settled the debt, necessitating legal action.
“I have granted the county ample grace period of nine years but despite the passage of all this time, it has not made any sufficient response on the question of payment of fees,” the lawyer said.
Through Martin Mwangi, the county acknowledged receipt of the fee note but raised concerns about the legal and factual aspects of the matter.
According to Mr Mwangi, the county should be given an opportunity to defend its position in court before any decision is made on the award.
Mr Mwangi also confirmed that the lawyer had indeed been instructed to draft an agreement between the county and Rain Drops Ltd. This agreement was successfully concluded and signed on March 28, 2014.
“Any claim for fees on this contract had to be made within three years of the date of execution of the said agreement or on the date the task given to draw the agreement on behalf of the county was concluded,” he said.
Mr Mwangi also noted that there was no evidence on record to suggest that the county continued to involve Mr Kithi in the execution of the agreement.
Kilifi taxpayers now await the resolution of the case to know whether or not the administration will have to pay the Sh1 billion claim.
