https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11326

Ali (Administrator of the Estate of Abdalla Ali Hassan (Deceased)) v County Government of Mombasa (Judicial Review Application E014 of 2025) [2026] KEHC 11326 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11326 (KLR) Republic of Kenya In the High Court at Mombasa Judicial Review Application E014 of 2025 J Ngaah, J July 24, 2026 Between Ali Abdallah Ali (Administrator of the Estate of Abdalla Ali Hassan (Deceased)) Applicant and The County Government of Mombasa Respondent Judgment The application 1.By a notice of motion dated 25 July 2025 and expressed to be brought under sections 8 and 9 of the Law Reform Act, cap 26, Order 53 rules 3 and 4 of the Civil Procedure Rules, 2010 and the Government Proceedings Act, cap 40, the applicant has moved this court for the following orders:(a)An order of mandamus to issue compelling the respondent herein to pay the sum of Kshs. 617,475/= due and owing on account of the decree dated 24 May 2019 in Mombasa CMCC No. 1123 of 2007 involving Abdalla Ali Hassan (plaintiff, now deceased) and the County Government of Mombasa (defendant) to the applicant herein, Ali Abdallah Ali; and,(b)The costs of the application be provided for. 2.The motion was preceded by an application for leave dated 22 May 2025, supported by a statutory statement and a verifying affidavit both of even date. By an order made on 15 July 2025, leave was granted to the applicant to apply for the order of mandamus, with a direction that the substantive motion be filed and served within fourteen days. The motion now before the court, dated and filed on 25 July 2025, was brought within the time allowed. 3.The motion is supported by the grounds on its face and by the applicant’s affidavit sworn on 25 July 2025. The background it discloses is as follows. The applicant’s late father, Abdalla Ali Hassan, sued the then Municipal Council of Mombasa in Mombasa CMCC No. 1123 of 2007 in a claim founded on malicious prosecution and defamation, the deceased having been charged before the Resident Magistrate’s Court at Mombasa in Criminal Case No. 4479 of 2004 at the instance of the council’s servants and thereafter acquitted on 15 June 2006. The plaint was subsequently amended to substitute the County Government of Mombasa, the respondent herein, for the defunct Municipal Council of Mombasa following the promulgation of the Constitution of Kenya, 2010 and the enactment of the county government legislation. 4.Upon full hearing of the suit, judgment was entered for the plaintiff on 16 November 2018 in the sum of Kshs. 360,000/= together with costs and interest. A decree was thereafter drawn and issued on 24 May 2019 reflecting the principal sum of Kshs. 360,000/= and interest of Kshs. 10,800/=, bringing the decretal amount to Kshs. 370,800/=. On the same date the trial court issued a certificate of stated costs certifying the plaintiff’s taxed costs of the suit at Kshs. 246,675/=. The aggregate of the decretal amount and the taxed costs is Kshs. 617,475/=, the sum which is the subject of the present motion. 5.On 12 November 2019, the trial court issued a certificate of order against the Mombasa County Government pursuant to Order 29 rule 3 of the Civil Procedure Rules certifying that the amount payable to the plaintiff by the defendant in pursuance of the decree is Kshs. 617,475/= together with costs and interest until the date of payment. 6.There is on record an affidavit of service sworn on 8 September 2021 by Charles M. Kenga, a licensed court process server, deposing that on 12 August 2021 he served the certificate of order against the county government together with the decree upon the respondent’s legal office at Bima Towers, 6th Floor, Mombasa, where the receiving officer acknowledged service by signing and impressing the respondent’s official stamp on the served copies. In addition, the applicant has exhibited a bundle of demand letters addressed to the respondent through the County Secretary and the Office of the County Attorney dated, respectively, 11 November 2019, 2 December 2020, 8 February 2022, 24 October 2022, 15 November 2022, 24 July 2023, 2 October 2023 and 28 March 2024. Each of these letters bears the official ‘received’ stamp of the Office of the County Attorney or, in the case of the letter of 28 March 2024, of the Office of the County Secretary and Head of Public Service. The letters of 11 November 2019 and 2 December 2020 in particular record that certified copies of the decree, the certificate of order against the government and the certificate of costs were enclosed and forwarded to the respondent. 7.The decree remains wholly unsatisfied. The respondent has neither appealed against the judgment and decree nor, on the material before me, disputed the debt. The decree holder, Abdalla Ali Hassan, died on 10 October 2020 without enjoying the fruits of his judgment. The applicant, who is his son, obtained a limited grant of letters of administration ad litem issued on 23 February 2021 in Succession Cause No. E070 of 2020 at the Chief Magistrate’s Court, Mombasa, a copy of which is annexed to his verifying affidavit. The applicant has also candidly disclosed, at paragraph 9 of his supporting affidavit, that his late father had earlier instituted a judicial review application which was dismissed by this court in a ruling delivered on 5 May 2020 on the ground that it was premature. The response 8.The respondent opposed the motion by way of grounds of opposition dated 19 November 2025 in which it is contended: that the application offends section 21 of the Government Proceedings Act, cap 40; that it is inconsistent with Order 29 of the Civil Procedure Rules, 2010; that these proceedings are special in nature and inclined to procedure, which the applicant has not followed; that neither the judgment, the decree, the certificate of order against the government nor the certificate of costs was served upon the accounting officer as required by section 21 of the Act; that the applicant has not tendered any authority under which he has filed the suit on behalf of the estate of Abdalla Ali Hassan; that the matter is res judicata, having previously been determined in Mombasa Judicial Review Case No. 30 of 2019, Abdallah A. Hassan versus County Government of Mombasa; and that the application is bad in law, premature and vexatious and ought to be dismissed with costs. 9.It is important to note at the outset that the respondent filed no replying affidavit. Its opposition to the motion rests entirely on the grounds of opposition and on written submissions. No evidence of any kind was placed before the court on the respondent’s behalf. The parties’ submissions 10.The motion was canvassed by way of written submissions. In his submissions dated 19 September 2025, learned counsel for the applicant submitted that the respondent was ordered to pay the applicant the sum of Kshs. 617,475/= by the decree of 24 May 2019; that a certificate of order against the government was obtained and served upon the respondent; and that despite numerous demands the respondent has ignored and failed to honour the decree. Counsel anchored the application on section 21(3) of the Government Proceedings Act, which obligates the accounting officer of the government department concerned to pay the sums certified in a certificate of order, and on section 21(4) of the Act which prohibits execution or attachment against the government, leaving mandamus as the only avenue open to a decree holder. Counsel relied on Republic v County Government of Kiambu; Kariuki t/a Jessee Kariuki & Company Advocates (Ex parte Applicant), Thika Judicial Review Application No. E013 of 2025; Republic v Permanent Secretary, Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR; and Republic v Principal Secretary, Ministry of Internal Security & another ex parte Schon Noorani & another [2018] eKLR. 11.In its submissions dated 21 November 2025, the respondent framed three issues: whether the applicant has fulfilled the requirements of section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules; whether the applicant has locus standi or authority to file the suit; and whether the application is res judicata. On the first issue, it was submitted that the applicant did not serve the certificate of order, the decree or the certificate of taxation upon the accounting officer, who, by dint of sections 103 and 104 of the Public Finance Management Act, No. 18 of 2012, is the County Executive Committee Member for Finance and Economic Planning as the head of the county treasury; that the documents relied upon were served on the wrong office; and that in the absence of a demand made upon the accounting officer there can be no express or implied refusal to pay. Reliance was placed on Republic v County Secretary, Nairobi City County & another ex parte Tom Ojienda & Associates [2019] eKLR and Republic v County Secretary, Nairobi City County & another ex parte Mohamed Tariq Khan [2017] eKLR. On the second issue, it was submitted that the applicant has not provided letters of administration and therefore lacks authority to sue on behalf of the estate. On the third issue, it was submitted that the deceased had previously filed a similar application, Mombasa Judicial Review Case No. 30 of 2019, which was dismissed with costs for want of compliance with section 21 of the Act, and that the present application is therefore res judicata. Issues for determination 12.From the grounds of opposition and the rival submissions, three issues fall for determination, namely: first, whether the applicant has the capacity to institute and maintain these proceedings on behalf of the estate of the deceased; secondly, whether the application is res judicata; and thirdly, whether the applicant has satisfied the conditions for the grant of an order of mandamus to compel satisfaction of the decree. Whether the applicant has capacity to bring these proceedings 13.The respondent’s complaint on this issue, both in its grounds of opposition and in its submissions, is that the applicant “has not provided letters of administration” and consequently has no authority or locus to file the suit. That complaint is not borne out by the record. Annexed to the applicant’s verifying affidavit sworn on 22 May 2025, and marked “A-1”, is a limited grant of letters of administration ad litem issued to the applicant on 23 February 2021 by the Chief Magistrate’s Court at Mombasa, Family Division, in Succession Cause No. E070 of 2020 in respect of the estate of Abdalla Ali Hassan, deceased, in the applicant’s capacity as son of the deceased. The grant is regular on its face. The respondent, having elected not to file a replying affidavit, placed no evidence before the court impeaching the grant, its authenticity or its subsistence; nor did its submissions engage with the grant at all beyond the blanket, and inaccurate, assertion that none had been provided. 14.The authorities cited by the respondent do not advance its case. Alfred Njau & others v City Council of Nairobi [1983] KLR 625 states the general meaning of locus standi; Julian Adoyo Ongunga v Francis Kiberenge Abano, Migori Civil Appeal No. 119 of 2015, and the line of authorities that includes Edema & 2 others v Edema & 5 others [2022] KEHC 9960 (KLR) hold that a suit filed on behalf of a deceased person’s estate before a grant of representation is obtained is a nullity. Those authorities are inapposite here: the grant was issued on 23 February 2021, more than four years before these proceedings were commenced on 22 May 2025. I would also observe that a portion of the respondent’s submissions on this issue appears to have been lifted wholesale from an unrelated matter, for it speaks of “the Plaintiffs” suing as “the Representatives of the Estate of Janendra Raichand Shah (deceased)”, a person who is an utter stranger to these proceedings. To that extent, the submissions were simply not addressed to the material actually placed before this court. 15.The objection on capacity, as framed and argued by the respondent, therefore fails. Whether the application is res judicata 16.The doctrine of res judicata is codified in section 7 of the Civil Procedure Act, cap 21, which provides as follows:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 17.The elements of the doctrine were restated by the Court of Appeal in Independent Electoral & Boundaries Commission v Maina Kiai & 5 others [2017] eKLR in the following terms:“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive but conjunctive terms; (a) the suit or issue was directly and substantially in issue in the former suit; (b) that former suit was between the same parties or parties under whom they or any of them claim; (c) those parties were litigating under the same title; (d) the issue was heard and finally determined in the former suit; and (e) the court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 18.These elements are conjunctive, and the burden of demonstrating each of them rests squarely on the party who invokes the doctrine; see also John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others [2021] KESC 39 (KLR). It follows that a party who pleads res judicata must place before the court the material from which the court can satisfy itself that the elements are met: at the very least, the pleadings in the former suit and the judgment or ruling by which the matter is said to have been heard and finally decided. Without that material, the court has no means of ascertaining what was directly and substantially in issue in the former suit, between whom, under what title, or whether the former court determined the matter on its merits. 19.The respondent chose to raise res judicata by way of a ground of opposition. A ground of opposition, like a preliminary objection, can properly raise only a pure point of law which is argued on the assumption that the facts pleaded by the other side are correct; it cannot be sustained if any fact has to be ascertained by evidence. The classic statement of the principle is that of the former Court of Appeal for East Africa in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Law, J.A. said that a preliminary objection:“…consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit…” 20.and Sir Charles Newbold, P. added that:“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 21.Whether a former suit existed, what was pleaded and prayed in it, and what the court decided in it are all questions of fact. They must be proved by evidence. In this case the respondent filed no replying affidavit. It did not exhibit the pleadings in Mombasa Judicial Review Case No. 30 of 2019; it did not exhibit the ruling or judgment by which that case is said to have been determined; and it supplied no particulars of the issues that were canvassed and decided in it. The bare citation, in the body of its written submissions, of “Abdallah A. Hassan v County Government of Mombasa [2020] eKLR” is no substitute, for it is trite that submissions are not evidence and cannot take the place of evidence: see Daniel Toroitich arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR. The plea of res judicata therefore fails at the threshold for want of proof. 22.Even if I were to go further and take into account the material that is actually on the record, the plea would still fail. The only evidence touching on the earlier proceedings is the applicant’s own candid disclosure that his late father’s judicial review application was dismissed on 5 May 2020 for the reason that it was premature. The respondent’s own submissions are to the same effect: that the earlier application was dismissed “for lack of proper procedure as per Section 21 of the Government Proceedings Act.” On either account, the earlier application was not heard and finally decided on its merits; it was disposed of on a procedural or preliminary ground. A dismissal of a suit as premature, or for non-compliance with a procedural condition precedent, is not a determination of the matter directly and substantially in issue; it leaves the party at liberty to approach the court afresh once the defect is cured or the cause of action crystallises. That is precisely what happened here: after the dismissal of 5 May 2020, the certificate of order against the government was served afresh on 12 August 2021, and demand followed demand through to 28 March 2024, all of which went unheeded. The fourth element of the doctrine, that the issue was heard and finally determined in the former suit, is therefore not satisfied on any view of the material before me. 23.The plea of res judicata accordingly fails. Whether the applicant has satisfied the conditions for the grant of an order of mandamus 24.The procedure for satisfaction of money decrees against the government is prescribed by section 21 of the Government Proceedings Act. Under subsection (1), where in any civil proceedings any order, including an order for costs, is made by any court in favour of any person against the government, the proper officer of the court shall, on application made at any time after the expiration of twenty-one days from the date of the order or, where the order provides for the payment of costs which 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. Subsections (2), (3) and (4) then provide:“(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 thereon…(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.” 25.These provisions apply with equal force to county governments, and Order 29 rule 3 of the Civil Procedure Rules makes provision for the issuance of a certificate of order against the government in the prescribed form. Indeed, the certificate relied upon in this case is, on its face, a “Certificate of Order against the Mombasa County Government (Pursuant to Order 29 Rule 3)”, and both parties argued the motion on the common footing that section 21 of the Act governs the enforcement of the decree in question. 26.The nature of the remedy the applicant seeks is well settled. In Republic v Kenya National Examinations Council ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Court of Appeal, citing Halsbury’s Laws of England, 4th Edition, Vol. 1(1) at paragraph 89, described the order of mandamus in these terms:“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right…” 27.The interplay between section 21 of the Act and the remedy of mandamus was explained in Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, where Githua, J. observed:“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.” 28.The conditions precedent to the issue of an order of mandamus in aid of a money decree against the government may therefore be summarised as follows: there must be a judgment and decree for the payment of money or costs; a certificate of order against the government must have been issued in the prescribed form after the expiry of twenty-one days from the order or after taxation of costs, whichever is later; the certificate must have been served; and, notwithstanding demand and the lapse of a reasonable time, the accounting officer must have failed, neglected or refused to pay. The respondent’s own submissions adopted substantially the same test, namely, a prior demand for performance, a reasonable time to comply, and an express refusal or an implied refusal through unreasonable delay. 29.Applying those conditions to the record: the judgment of 16 November 2018 and the decree of 24 May 2019 are exhibited and their existence is not disputed; the costs of the suit were taxed and certified at Kshs. 246,675/= by the certificate of stated costs of 24 May 2019; the certificate of order against the county government was issued on 12 November 2019, well after both the expiry of twenty-one days from the decree and the taxation of costs, and it certifies the amount payable at Kshs. 617,475/= together with costs and interest until payment; and service of the certificate together with the decree upon the respondent’s legal office on 12 August 2021 is proved by the affidavit of Charles M. Kenga, a licensed court process server, sworn on 8 September 2021. Beyond that single act of service, the record discloses no fewer than eight letters of demand spanning the period November 2019 to March 2024, each acknowledged by the official received stamp of the Office of the County Attorney or of the County Secretary, several of which enclosed certified copies of the decree, the certificate of order and the certificate of costs. None of this evidence was controverted; the respondent, as already noted, filed no replying affidavit. 30.The respondent’s answer to this formidable body of evidence is a single point: that the documents and demands ought to have been served upon the accounting officer, being the County Executive Committee Member for Finance and Economic Planning as head of the county treasury under sections 103 and 104 of the Public Finance Management Act, and that service upon any other office is of no consequence. With respect, the argument cannot be sustained. Section 21 of the Government Proceedings Act does not prescribe the officer upon whom the certificate must be served, still less does it make personal service upon the accounting officer a condition precedent to his statutory duty to pay. Subsection (2) is permissive in terms: the certificate “may be served… upon the Attorney-General”, the government’s principal legal adviser. In the scheme of devolved government, the office corresponding to that of the Attorney-General is the office of the County Attorney established under the Office of the County Attorney Act, No. 14 of 2020, whose functions under section 6 of that Act include acting as the principal legal adviser to the county executive and representing the county executive in court in civil proceedings to which the county is a party. The evidence is that the certificate of order and the decree were served upon, and acknowledged by, the respondent’s own legal office, and that successive demands were received and stamped by the Office of the County Attorney and by the County Secretary, the head of the county public service. Service upon the county government’s principal legal office is service upon the county government; knowledge acquired by that office is knowledge of the county government, of which the accounting officer is an officer. The internal transmission of documents from the county’s legal office to its treasury is the county’s own administrative affair, and a public body cannot be heard to set up its internal disorganisation as an answer to a decree holder who has done everything the statute requires of him. 31.The authorities cited by the respondent are distinguishable. In Republic v County Secretary, Nairobi City County & another ex parte Mohamed Tariq Khan (supra) and Republic v County Secretary, Nairobi City County & another ex parte Tom Ojienda & Associates (supra), the question was whether the County Secretary, who had been named as the respondent, was the proper officer against whom an order of mandamus could issue in matters of county finance. Here, by contrast, the respondent is the County Government of Mombasa itself, the very judgment debtor named in the decree and in the certificate of order, and any order made will be directed to it to act through its accounting officer. Moreover, in the Tom Ojienda case the court was unable to find an express or implied refusal “in absence of a prior notice to comply”; in the present case, prior notice was given not once but repeatedly over a period of some five years, and it was met with total silence. If a demand served upon and acknowledged by the county’s own legal office, enclosing the decree and the certificates, and repeated year after year, does not constitute reasonable notice, it is difficult to conceive what would. 32.I am accordingly satisfied that all the conditions for the issue of an order of mandamus have been met. There is a public legal duty, imposed on the respondent’s accounting officer by section 21(3) of the Act, to pay the certified sum; that duty is owed to the applicant as the legal representative of the decree holder; the applicant has satisfied every condition precedent, including demand and the allowance of a reasonable time to comply; the refusal to pay, express or implied through unreasonable delay, is manifest; and, by reason of section 21(4) of the Act, no other remedy is available to the applicant, execution and attachment against the government being prohibited. The respondent never appealed the decree; it does not dispute the debt; it has simply declined to pay. The order sought is of obvious practical value and no equitable bar to it was alleged, let alone established. 33.Mandamus is, of course, a discretionary remedy, and the court is entitled to take into account the nature of the process against which judicial review is sought and to satisfy itself that there is a reasonable basis to grant or decline the orders sought. I have found no ground upon which the discretion ought to be exercised against the applicant, and none was drawn to my attention save the grounds which I have considered and rejected above. On the contrary, every consideration of justice favours the grant of the order: the judgment was entered as long ago as 16 November 2018; the original decree holder went to his grave in October 2020 without receiving a shilling of it; and his estate has since pursued the respondent with a patience that the respondent has done nothing to deserve. Disposition 34.In the result, the notice of motion dated 25 July 2025 is merited and it is allowed in the following terms:(a)An order of mandamus be and is hereby issued compelling the respondent, the County Government of Mombasa, acting through its accounting officer, namely, the County Executive Committee Member for Finance and Economic Planning, to pay to the applicant the sum of Kshs. 617,475/= being the amount certified in the certificate of order against the Mombasa County Government dated 12 November 2019 issued in Mombasa CMCC No. 1123 of 2007, together with interest lawfully due thereon in terms of the decree and the said certificate until payment in full.(b)The respondent shall bear the costs of this application. 35.It is so ordered. SIGNED, DATED AND DELIVERED AT MOMBASA ON 24 JULY 2026 NGAAH JAIRUSJUDGE