BY SAM ALFAN.
Judicial Service Commissioner Tom Ojienda has lost his bid to compel Nairobi County government to pay him over Sh 87.3 million owed to him in legal fees.
This is after the High Court dismissed his application seeking orders to compel Nairobi City County Secretary and the Chief Officer to pay 87,378,487.75 million within 7 days being the decretal sum and accrued interests up to 28.03.2017 in respect of miscellaneous application No. 5 of 2016.
In his ruling Justice John Mativo said that Ojienda did not follow the right process to get an order compelling the county government to pay his legal fees.
Mativo said that Ojienda failed to table relevant evidence showing previous demand for payment, making it impossible to prove the county government refusal to pay him.
“I find and hold that the applicant (Ojienda) has not satisfied the conditions for the court to issue an order of notice to show cause to the respondents Nairobi city county Secretary, Chief Officer, Finance or county Treasury and an order compelling them to pay him the said sum. It follows that there is no basis at all for the Court to grant the order of Mandamus,” ruled the Judge.
While dismissing the application Mativo further noted that Ojienda did not table evidence in court showing that there was a prior demand for performance form the Nairobi County Government before filing the application.
“One would have expected a written prior demand for payment. This has not been annexed to the application. One cannot talk of a refusal to pay if there is no evidence of prior demand for the payment. There is no evidence that the Ruling and Reasons for Taxation, Certificate of Taxation and Decree done by the Registrar of the High court annexed to the application were served upon the Respondents prior to filing this application, ‘ ruled the Judge.
On September 25, 2018 Ojienda moved to court arguing that he had been awarded the Sh 87,378,487.75 after the court on March 29, 2017, ordered that the legal fees owed to him accrue interest of 14 per cent until he was paid in full.
Ojienda further applied that Nairobi County Secretary and Chief Office to pay addition interest on the said sum of Ksh. 87,378,487.75 at the rate of 14% from the 29.03.2017.
He also applied the said county officials to show cause why they should not be cited for contempt of court.
The lawyer was also seeking the court to make a compulsion order to have the Nairobi County Government pay him his fees plus the accrued interest.
The respondents namely Nairobi city county Secretary, Chief Officer , Finance or county Treasury had opposed the application on grounds that the application is pre-mature, misconceived, lacks merit, frivolous and an abuse of the court process. Nairobi County government through their lawyer further argued that they were not involved in the ruling that awarded Ojienda the hefty sum.
“The Respondents contend that committal proceedings ought not to issue against a party who was not a party to HCC Misc App No. 5 of 2016 and was not served with the order or decree as this will offend Articles 47 and 50of the Constitution,” said the court.
They further stated that the documents in support of the application, namely, the Ruling and Reasons for Taxation, Certificate of Taxation and Decree were never served upon the Attorney General contrary to Government Proceedings Act