https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12689

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **JUDICIAL REVIEW APPLICATION NO. E003 OF 2025** **IN THE MATTER OF ORDER 53 RULE 1 OF CIVIL PROCEDURE ACT** **IN THEMATTER OFANAPPLICATIONFORJUDICIAL REVIEW AND** **DORIS CAROLYNE OCHIENG AAL ERIC suing as administrators to the estate of the late** **BRIAN OCHIENG (DECEASED) FOR AN ORDER OF MANDAMUS** **IN THE MATTER OF THE BOARD OF THE ATTORNEY GENERAL** **THE PRINCIPAL SECRETARY MINISTRY OF INTERIOR COODNATION** **IN THE MATTER OF GOVERNMENT PROCEEDINGS ACT, CAP 40, LAWS OF KENYA** JUDGMENT Before this Court is the Ex Parte Applicant’s Chamber Summons dated 28th May 2025 seeking an order of mandamus to compel the Respondents, to honour the decree of the court in Migori CMCC No. E008 of 2024 and pay the exparte Applicant the decretal sum of Kshs7,2650,000/= together with cost and further interest from 29th May 2023 till payment in full. The Ex-Parte Applicant also sought for costs of the application. The application is premised upon the grounds set out in its face and Verifying Affidavit sworn by the Applicant on 28th May 2025. The Respondents opposed the application vide Grounds of Opposition dated 17th November 2025 that the Application offends the mandatory provisions of Section 8 of the Office of the Attorney-General Act (Cap. 6A, Laws of Kenya) as read together with Section 4 (4) and section 21 (4) of the Government Proceedings Act (Cap. 40, Laws of Kenya), that the issuance of the orders sought in the Application is tantamount to granting execution orders against the Government contrary to the express provisions of Order 29 Rule 2 (2) (b) of the Civil Procedure Rules, 2010. THAT the Applicants are guilty of selective execution, laches, indolence and failure to exercise due diligence which is inexcusable conduct that should not be entertained by this Honourable Court. THAT the orders sought in the Application are misconceived, untenable and are not supported by factual evidence and/or the Law. THAT the Application is fatally defective, incurably bad in law and amounts to a complete abuse of the Court process. REASONS WHEREFORE, the Respondent prays that the said Application be dismissed the ex parte The application was heard by way of written submissions. The Applicant’s submissions are dated 24th March 2026 and are to the effect that judgement was entered against the Respondents in Migori Civil suit No. E008 of 2024 against administrative police service Nyatike Sub County whose motor vehicle knocked down one Brian Ochieng (deceased) while the deceased was riding a motor cycle. The said suit was heard and determined and judgment entered in favour of the administrators of the estate of the deceased. The defendants in the said suit failed to pay the awarded sum of money thereby necessitating the instant suit. It was their submission that the Attorney General is properly sued in this matter further that this suit has not offended Order 29 on proceedings against the government and that the 2nd Respondent would be required to make payment to the applicant in the event that this suit succeeds. they relied in the e case of **Peter Anyang' Nyongo 10 Others vs. Solicitor General [2011)eKLR**, Warsame J. expressed himself as follows; "**No doubt the decree is against the Attorney General but in his representative capacity. As stated earlier the Attorney General was representing one arm of the Government and if any costs or liability accrues from his representation, he is obliged to pay the costs. It is for the Attorney General to advise his clients to pay the costs which attracted his representation on behalf of the said client. Being a constitutional representative and being the principal legal advisor to the three arms of the Government, he is required to direct any arm of Government he represented to pay the costs of any suit which he acted on its behalf. Clearly, it is the duty and the function of the Attorney General to advise his client and if a Particular organ refuse to pay he will be responsible on behalf of his agent. In that regard the Solicitor General being the accounting officer of the Attorney General was rightly sued by applicants. In my mind the applicants clearly and correctly sued the Solicitor General and are entitled to the orders sought."** They further relied in the case of **Githua, I in Republic vs. Permanent Secretary. Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza [20121 eKLR** expressed herself as follows: **"In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its Legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil Proceedings, where decrees for the Payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its Property/goods under Section 21 (4) of the Government Proceedings Act. The only requirement which serves as a condition Precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 2 1 (1) and (2) of the Government Proceedings Act which provides that Payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General.** **Once the certificate of order against the Government is served on the Hon Attorney General, section 21 (3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the Person entitled or to his advocate together with any interest lawfully accruing thereon. This Provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues. "** The Applicants further submitted that immunity from personal liability of public officers, the effect of grant of an order of mandamus was considered in extenso in **High Court Judicial Review Miscellaneous Application No. 44 of 2012 between the Republic vs. The Attorney General Another ex parte James Alfred Koroso** where the Court held that: **"In seeking an order for mandamus the applicant is seeking, not relief against the Government, but to compel a Government official to do what the Government, through Parliament, has directed him to do. The relief sought is not "execution or attachment or Process in the nature thereof'. It is not sought to make any Person** **"individually liable for any order for any payment" but merely to oblige a Government officer to pay, out of the funds provided by Parliament, a debt held to be due by the High Court, in accordance with a duty cast upon him by Parliament...ln mandamus cases it is recognized that when statutory duty is cast upon a Public Officer in his official capacity and the duty is owed not to the State but to the public any Person having a sufficient legal interest in the Performance of the duty may apply to the Courts for an order of mandamus to enforce it. In other words, mandamus is a remedy through which a public officer is compelled to do a duty imposed upon him by the law. It is in fact the State, the Republic, on whose behalf he undertakes his duties, that is compelling him, a servant, to do what he is under a duty, obliged to Perform."** They therefore submitted that the issue of public officers' immunity under section 21(4) of the Government Proceedings Act are inapplicable in this matter since in any case, the said Act only applies to civil liabilities while judicial review, being neither criminal nor civil in nature deal with civil liabilities, It was also their submission that the Respondent's office was served with the certificate of costs the judgment in the primary suit, notice of entry of judgment and a demand letter to which they did not act upon thereby necessitation this suit. The said documents were received and stamped by the Respondents as demonstrated in the annexures to the applicant's application. They thus urged this Court to issue them with the orders sought. The Respondents filed joint submissions dated 26th May 2026. On the issue as to whether this Honourable court should allow the application, the Respondents referred to Section 21(3) of the Government Proceedings Act which provides that: **In Order 21 of the Government proceedings Act provides an elaborate law and procedure on the satisfaction of orders against the government and provides as follows: 21. Satisfaction of orders against the Government (1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order: Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant. (2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney General. (3)If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due** **(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon, provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein. (4) Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs. (5) This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.”** They submitted that the Application is immature for reasons that section 21 was not adhered to. That the other crucial documents have never been obtained from court nor properly served hence the statutory duty has not crystallized. To this end, they urged the court not to grant the orders sought. It was their further submission that that if at all the documents were served which they denied, administrative delay is not refusal. It was their assertion that the Applicant is guilty of indolence and failure to exercise due diligence as there was no proof of service the documents upon the Respondent, the respondents are obliged to process the claim. The said elaborate procedure is meant to give the government adequate notice to make arrangements for the satisfaction of the decree. It was also their submission that the order of mandamus is discretionary and should be declined where there is no willful default. They relied in **Patel v EA Cargo Handling Services Ltd (1947) EA 75 the Court of Appeal held as follows: i. "There are no limits or restrictions on the judge's discretion except that if he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose conditions on itself or fetter wide discretion given to it by the rules, the principle obviously is to have power to revoke the expression of its coercive power where that has obtained only a failure to follow any rule of procedure."** It was their further submission that should the court be inclined to grant the relief, a reasonable timeline should be given for purposes of allowing the defendant process the claim upon proper service of the required documents. Reliance was placed in **Permanent Secretary Office of the President Ministry of Internal Security & Another ex parte Nassir Mwadhihi (2014) eKLR also had the following to say of the matter: - 33. It therefore follows from the foregoing discourse that the rules applicable to normal execution proceedings by way of committal to civil jail are not necessarily applicable to enforcement of an order of the Court arising from an order of mandamus by way of committal. It must be remembered that an application for an order of mandamus seeking an order compelling the Government to satisfy a decree is a very elaborate procedure. Before the Court issues such an order, there must be proof that the provisions of the Government Proceedings Act have been complied with respect to issuance of certificate of costs and certificate of order against the Government. After the issuance of the aforesaid documents, just like in any application for mandamus, there must be a demand for payment made by or on behalf of the decree holder to the relevant department seeking payment since in an application for an order of mandamus, the law as a general rule requires a demand by the applicant for action and refusal as a prerequisite to the granting of an order, though there are exceptions to the rule. See The District Commissioner Kiambu vs. R and Others Ex Parte Ethan Njau Civil Appeal No. 2 of 1960 [1960] EA 109; R vs The Brecknock And Abergavenny Canal Co. 111 ER and R vs. The Bristol and Exeter Railway Co 114 ER 859. 34. The said elaborate procedure is further meant to give adequate notice to the Government to make arrangement to satisfy the decree. The procedure, in my view is not meant to relieve the Government from meeting its statutory obligation to satisfy a decree and orders of the court….”** It was further submitted that it is plain that the 2nd Respondent had not acted in breach of failing to satisfy the decree and/or Judgment the certificate of order owing to the fact that decree was never served upon the Respondents. In conclusion the Respondents Counsel submitted that in the instant case, the applicant has not satisfied all conditions precedent to issuance of order of mandamus and the Applicants application is premature and should be dismissed with costs **ANALYSIS AND DETERMINATION** Having considered the application, the affidavits, the rival submissions and the authorities cited, the following issues arise for determination: 1. Whether the Applicant has satisfied the legal requirements for the grant of an order of mandamus. 2. Whether non-service of decree was fatal 3. Who should bear the costs of the application. On Whether the Applicant has established the conditions for the grant of mandamus The principles governing the grant of an order of mandamus are now well settled. Mandamus issues to compel the performance of a public duty imposed by statute where the Applicant has established a legal right, the respondent has failed or refused to perform that duty and there exists no other equally convenient remedy. The Court of Appeal in Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others explained that mandamus is intended to compel the performance of a public duty where a legal duty exists and there is no other adequate remedy. Equally settled is the position under Section 21 of the Government Proceedings Act that once a decree has been issued against Government or a County Government, execution by attachment is prohibited. The successful litigant is instead entitled to obtain a Certificate of Order Against the Government, after which the accounting officer assumes a statutory obligation to satisfy the decree. The material before this Court demonstrates that judgment was entered in favour of the Applicant. A decree and Certificate of Order Against the Government were issued. The Applicant has also exhibited demand letters addressed to the Respondents over a prolonged period. The Respondents do not dispute the existence of the judgment or the decretal amount. Indeed, their opposition is not that the debt is not due but rather that payment has not been effected because the proper documenta were allegedly not obtained and served and that the court should give them time to settle the decretal amount. This Court has confirmed from the record that the Respondents were duly served and reminded but have wailfully neglected payment of a lawful court decree. Once judgment has been entered against a County Government and the statutory process under Section 21 has substantially been complied with, the accounting officer is under a mandatory legal obligation to satisfy the decree. Substantive technicality cannot override or suspend a judicial decree. To hold otherwise would permit public bodies to defeat court judgments indefinitely, contrary to the rule of law and provisions of Article 48 and Article 159 of the Constitution. On whether service of the statutory documents was effected upon the Respondents, a quick perusal of the record indicates that the Respondent was serve with a notice of entry of judgement, a certificate of cost and a judgement. A decree was however not served. The Court is equally mindful that judicial review remedies are intended to achieve substantive justice and not to elevate procedural technicalities over the enforcement of lawful court decrees. The Respondents have not denied knowledge of the decree. Indeed, they filed detailed responses acknowledging both the judgment and the decretal amount. They also admitted that payment has not been made because of lack of budgetary allocation. Their defence is therefore not founded upon lack of knowledge but upon an internal administrative process. The Respondents are therefore under an obligation to fulfill the decretal amount, service of decree notwithstanding. The Court adopts the reasoning expressed in **Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR** where it was held that the purpose of mandamus is enforcement of judgments against public bodies and that technical objections should not defeat enforcement of undisputed court judgments. The Court further agrees with the reasoning that judicial review proceedings should not be defeated merely the official decree was not served yet the Respondents acknowledged the judgement and the decretal sum. The Respondents have not demonstrated any prejudice arising from non-service of the decree. They have participated fully in these proceedings and have acknowledged the existence of the judgement and the decretal sum. The Court therefore finds that the objection based on service is not sufficient to defeat an otherwise meritorious application. This court therefore finds that the Applicant has established that, there exists a valid judgment against the County Government; a Certificate of Order Against the Government was issued; repeated demands for payment have been made over a considerable period; the decretal amount remains unpaid; and no other effective remedy exists because execution against Government is barred by law. This Court is therefore satisfied that the statutory threshold for the grant of an order of mandamus has been met. Accordingly, the Notice of Motion dated 8th April 2024 is hereby allowed as follows: 1. An order of Mandamus is hereby issued compelling the accounting officer of the County Government of Migori, being the officer legally responsible under Section 21 of the Government Proceedings Act and the Public Finance Management Act, to satisfy the decree in Migori CMCCC No. E008 of 2024 by paying the Ex Parte Applicant the decretal sum of Kshs.2,650,000 /= together with the accrued interest until payment in full within sixty (60) days from the date of this judgment. 2. In default of compliance within the stipulated period, the Ex Parte Applicant shall be at liberty to institute appropriate proceedings against the accounting officer for enforcement of this order in accordance with the law. 3. The Ex Parte Applicant shall have the costs of this application. It is so ordered. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 30TH JULY 2026** **ANNE ONG’INJO** **JUDGE**