https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8613

Atlas Plumbers and Builders (K) Ltd v County Executive in Charge Of Finance, County Government of Nairobi (Judicial Review E108 of 2026) [2026] KEHC 8613 (KLR) (Judicial Review) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8613 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E108 of 2026 WM Musyoka, J June 18, 2026 Between Atlas Plumbers And Builders (K) Limited Applicant and County Executive in Charge Of Finance, County Government of Nairobi Respondent Judgment 1.These Judicial Review proceedings were initiated by way of Originating Motion, dated 25th March 2026, filed herein, for a mandamus order, directed at the respondent, to compel satisfaction of a decree, passed in Milimani MCCOMMSU NO. E1022 of 2023, together with costs and interests. 2.According to the facts set out on the face of the Originating Motion and in the supporting affidavit, sworn by Harish Bhanderi, on 25th March 2026, the decree was for a sum of Kshs. 2,250,965.66, plus Kshs. 1,936,454.24, being interest accrued on that amount between March 2019 and 5th December 2023. Interest was also awarded, on those amounts, at 9% per annum, from 17th November 2023 until payment in full. Costs were assessed at Kshs. 220,808.97. It is alleged that a decree and certificates of orders against the Government were processed, and served on the respondent. It is contended that that decree stands unsettled to date, hence the filing of the application. 3.Several documents are exhibited, in the affidavit, in support of the quest. These are the decree extracted in Milimani MCCOMMSU NO. E1022 of 2023, dated 13th March 2024; a certificate of order against the Government, dated 22nd April 2024; a certificate of order for costs against the Government, dated 22nd April 2024: a letter, from the Advocates for the applicant, dated 23rd February 2026, addressed to the respondent, forwarding copies of a notice of entry of judgement and the decree; and a notice of entry of judgement, dated 9th April 2025. 4.The respondent was served with the Originating Motion, for I have seen, on the record, an affidavit of service, sworn on 24th April 2026, evidencing personal service, of the said Originating Motion, on 24th April 2026. 5.The respondent has come on record, by way of a notice of appointment of an Advocate, dated 29th April 2026, and filed a replying affidavit, sworn on 11th May 2026, by Ms. Asha Abdi. The point, made in the affidavit, is that the application has not satisfied the requirements of execution as per the Public Finance Management Act, Cap. 412A, and the Government Proceedings Act, Cap. 40, Laws of Kenya. It is argued that the County Government is funded through moneys allocated to it by the County Assembly, and it cannot commit funds, unless the said funds have been approved by the Assembly. 6.Directions were taken, for canvassing of the application, by way of written submissions. I have only come across written submissions filed by the applicant. I have read through the said written submissions, and noted the respective arguments made in them. 7.The applicant identifies section 21 of the Government Proceedings Act as the law on enforcement of decrees against the government, and submits, based on Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR, that the statutory duty to satisfy the decree accrues, on the Government, upon service of a certificate of order against the Government. Republic vs. Nairobi City Council Ex Parte Rodgers Mong’are Ombachi [2015] eKLR and Republic vs. Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka [2019] eKLR, are cited. 8.The processes for levying execution of court decrees and orders, as set out in the Civil Procedure Act, Cap. 21, Laws of Kenya, and the Civil Procedure Rules, are not available against the Government. The rationale for that position was given in Kisya Investments Ltd vs. Attorney General & another [2005] eKLR [2005] KEHC 3226 (KLR). Proceedings against the Government are governed by the Government Proceedings Act, in terms of how to initiate the proceedings, and what to do after a decree is obtained. The requirement is that, upon a decree or order being obtained against the Government, the party, desiring to have it satisfied or complied with, ought to obtain, from the court, a certificate of order against the Government, which should then be served. 9.The law, on satisfaction of orders and decrees against the Government, is section 21 of the Government Proceedings Act. It is section 21(1) which requires extraction of the certificate of order against the Government from the court record. Section 21(2) requires service of that certificate on the Attorney General or County Attorney, whichever the case. It is section 21(3) which directs the Accounting Officer, for the Government department concerned, to pay, to the person entitled or to his Advocate, the amount appearing by that certificate. It is section 21(4) which declares that no execution or attachment, or any other process of that kind, should be issued by the court, for enforcement of payment by the Government of any money or costs decreed or ordered by a court against it. See Republic vs. Permanent Secretary Office of the President Ministry of Internal Security & another Ex-Parte Nassir Mwandihi [2014] eKLR [2014] KEHC 6027 (KLR). 10.The accounting instrument, for the purpose of Government operations, which unlocks payment of money from the Government, in satisfaction of a court order or decree, is the certificate of order against the Government. This document is critical. Without it, the process of payment cannot be unlocked. Any person, desiring to be paid by Government, on account of a decree or order against it, must first obtain the said certificate. That certificate must then be served on the Attorney General; in case the decree or order is against the national Government; or the County Attorney, where the order or decree is against a County Government. The Government should only be expected to settle or satisfy the decree upon being notified of the same, through that certificate being appropriately served, in accordance with the law. See Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR and Five Star Agencies Ltd & another vs. National Land Commission & 2 others [2024] KECA 439 (KLR). 11.Mandamus is available where a statutory or public duty exists, and it issues to enforce that duty. See Kenya National Examinations Council vs. Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR. The duty, on the part of the Government, with respect to court orders and decrees, to pay or settle a court decree or order, accrues, not upon the order or decree being passed, but upon the accounting document, known as certificate of order against the Government, being served on the relevant Government official. Mandamus can only be obtained on the strength of service of the said certificate, for it is upon that service that the duty to act accrues. 12.The question in this case then is, whether the duty to pay has accrued. The answer to that question would depend on whether a certificate of order against the Government was obtained, and if it was, whether it was served on the relevant Government functionary. 13.My perusal of the affidavit, filed herein by the applicant, sworn on 25th March 2026, reveals that a certificate of order against the Government and a certificate of order on costs against the Government, were obtained from the trial court, and were issued on 22nd April 2024. The said certificate is a court instrument, in the same footing with a summons, a notice, an order or a decree. Such court instruments are served upon the concerned parties, through a court process server, either personally, or through substituted service. I have seen no affidavit of service, in respect of the said certificate of order against the Government and certificate of order on costs against the Government, annexed to the said supporting affidavit, evidencing service of those 2 very important documents that the applicant had obtained from court. 14.However, other evidence, pointing to the said document or court process, that is the certificates of order against the Government and costs against the Government, having been served on the relevant Government agent for the purposes of these proceedings, could be availed, such as snail mail and email correspondence, with endorsements of receipt, and could be depended upon to satisfy the court on service. Ideally, though, this being court process, the most ideal mode of service, of this all-important accounting document, must be by way of ordinary service of court process, through the modes provided for under the Civil Procedure Act and the Civil Procedure Rules. 15.Do I have evidence that there was service of the certificates of the orders against the Government, to trigger the duty, on the part of the respondent to settle the decree? I have closely perused the 2 certificates of orders against the Government, both dated 22nd April 2024, and I have not found anything on their faces, pointing to their having been served personally upon the County Attorney or any other official of the Nairobi City County Government, for I have not seen a mark of an official date stamp of the Nairobi City County Government, embossed on the face of either of the 2 certificates. I have also not, as stated above, seen an affidavit of service, by a licensed court process server, evidencing that that crucial court paper was served on the relevant officer of the Nairobi City County Government. 16.The applicant claims that their Advocates forwarded the said crucial document, by way of ordinary mail. A letter, dated 23rd February 2026, has been exhibited, which is embossed with a date stamp of the Nairobi City County Government, acknowledging receipt. The date on the stamp is not altogether clear, but the service was sometime in February 2026. The letter advises entry of a default judgement on 20th February 2024, and forwards 2 documents, a notice of entry of judgement and a decree. That letter did not furnish the Nairobi City County Government with copies of those 2 all-important certificates of orders against the Government. I have no other evidence, pointing to those 2 very important documents having been placed before the relevant officer of the said County Government. 17.The situation could, perhaps, be salvaged, if the respondent concedes to having been served. I have read through the affidavit of Ms. Abdi, and I have not come across any admission that the said certificates were served on the respondent or the Nairobi City County Government. All I see is a recital, based on the papers filed by the applicant, that the matter herein arises from a certificate of order against the Nairobi City County Government and a decree from the trial court. However, that is no admission that that certificate was ever served. 18.The mandamus order issues to enforce the duty to pay, where that duty has accrued. The failure to serve that certificate is fatal, and evidence of service would lead to grant of the mandamus order. See Evans James Misati vs. County Secretary Chief Officer Ministry of Health County Government of Vihiga Ex Parte: Evans Kames Misati [2021] KEHC 13532 (KLR) and Republic vs. Principal Secretary Ministry of Interior and Coordination of National Government & another; Wang'ombe (Ex parte) [2024] KEHC 4336 (KLR). The certificate of order against the Government has not been served, in this case, hence the duty to pay has not accrued. The mandamus order is not available in this case, in the circumstances. It cannot, as a consequence, issue. 19.In the end, I hereby find that the application, by way of Originating Motion, dated 25th March 2026, is not merited, and I hereby disallow and dismiss it. There shall be no order on costs. Orders accordingly. DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 18TH DAY OF JUNE 2026.W MUSYOKAJUDGEMr. B. Rinkanya, Court Assistant.AdvocatesMs. Mumbi, instructed by CM Advocates, for the applicant.Mr. Cheruiyot, instructed by the County Attorney, for the respondent.