https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12498

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **JUDICIAL REVIEW APPLICATION NO. E003 OF 2026** **IN THE MATTER OF THE ENFORCEMENT OF THE DECREE ISSUED IN NYERI CMCC NO E005 OF 2024** **AND** **IN THE MATTER OF JUDICIA REVIEW APPLICATION FOR AN ORDER OF MANDAMUS** **BETWEEN** **THE HONOURABLE ATTORNEY GENERAL.….....1ST RESPONDENT** **THE MINISTRY OF EDUCATION …………..………2ND RESPONDENT** **PRINCIPAL SECRETARY FOR EDUCATION……...3RD RESPONDENT** **AND** **MILLICENT WAITHERA GATHUO ……..….. EX-PARTE APPLICANT** **JUDGMENT** 1. By a Notice of Motion filed on 22.1.2026, the *ex parte* applicant herein seeks the following Orders: 2. That an Order of Mandamus do issue to compel the 3rd Respondent to pay to the Applicant the sum of Kshs. 5,710,781.95 being the decretal amount owed to him in Nyeri CMCC No. E1005 of 2024 certified on the judgment dated 20.11.2024, decree issued on 2.10.2025 and Certificate of Order Against the Government dated 14.11.2025. 3. That An Order of Mandamus be issued against the 3rd Respondent compelling him to pay interest as awarded by the trial court at 14% per annum from 20.11.2024 until payment in full. 4. That the costs of this application be provided for. 5. The Motion is based on the grounds set out in the statutory statement and verifying affidavit dated on 22.1.2026. 1. According to the said documents, the *exparte* applicant’s case is that by a decree issued by this Honourable court on 2.10.2025, the Respondents were ordered to pay the applicant a total sum of **Kshs 5,710,781.95** which sum remains unpaid to date. 2. The applicant avers that the Respondents have not taken any step to pay and despite persistent demands for payment the Respondents have not yielded. 3. The Applicant attaches a copy of a demand letter dated 25.11.2025. The applicant further avers that due to failure by the Respondents to satisfy the said decretal amount, the estate of the deceased continues to sufferer loss and damage and have suffered financial ruin. 4. The Respondents filed their grounds of opposition dated 16.3.2026 on the material grounds that: 5. The Ministry needed to request for money in order to honor payment of decretal sum. 6. The Ministry has already exhausted its budgetary allocation. 7. Once the ministry allocated the funds and sends them to the Attorney General, the funds will be available and will be paid to the Applicant. 8. The application is unreasonable and untenable. 9. The said grounds of opposition were reiterated in the submissions of the Respondents dated 16.3.2026 which the court has considered. 1. In her submissions, the Ex parte Applicant on the other hand submitted that the enforcement of monetary decrees against the government was not conditional to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues. Reliance was placed on the case of **Republic v County Secretary, Government of Nairobi County & 5 others; Faram East Africa Limted (Ex parte Applicant) [2025] KEHC 11890 (KLR**) as follows: Similarly, in Republic vs. Permanent Secretary Ministry of State for Provincial Administration and Internal Security [2012] eKLR, the Court held thus:“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 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the 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. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. 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.” 1. It was submitted that it was not contested that the applicants had complied with the rest of the conditions prescribed in section 21 of the Government Proceedings Act. To be precise, there is no evidence that the applicants defaulted in any other step prescribed. 2. Further reliance was placed on the case of **Republic v Principal Secretary Ministry of Education & Principal Secretary Ministry of Finance and National Treasury; Ex parte Timothy Macharia** [2021] KEELC 1573 (KLR) where the court held that: 8. The court is satisfied on the basis of the material on record that the Applicant is entitled to the fruits of his judgment and that there is no valid reason why he should be kept waiting for much longer. There is no doubt that execution of decrees against the Government is expressly barred by Section 21 (4) of the Government Proceedings Act. The only option available to a decree holder is to apply for the judicial review order of Mandamus to compel the concerned accounting officer to perform his statutory duty as stipulated under Section 21 (3) of the said Act. See Republic v Attorney General & Another Ex parte Ongata Works Limited [2016] eKLR. Analysis 1. The Applicant maintained that she did the best she could and followed all the procedure under law to claim the decretal sum plus interest but the Respondents declined to honor the claim. The Respondents are generally not opposed to the amount that the Applicant sought. Their response as contained in the Grounds of Opposition and submissions is that they need more time for the national budgetary allocation to be done by parliament in the suitable financial year to enable funds to be released. 1. It is the Respondents’ public duty to satisfy the Applicant’s decree obtained in the lower court and failure to do so attracts the court’s discretion to issue an order of *mandamus* commanding them to do so*.* In **Republic vs. Kenya National Examinations Council *ex parte* Gathengi & 8 Others Civil Appeal No 234 of 1996,** the Court of Appeal cited, with approval, ***Halsbury’s Law of England, 4th Edn. Vol. 7 p. 111 para 89*** thus: ***"The order of mandamus is of 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 and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."*** 14. As submitted by the applicant, section 21(4) of the Government Proceedings Act prohibits execution against the Government thus leaving the applicant no other appropriate remedy except *mandamus*. That was the position in the English case of **R (Regina)** **vs. Dudsheath**, **ex parte, Meredith [1950] 2 ALL E.R. 741, at 743, Lord Goddard C. J.** said - ***"It is important to remember that "mandamus" is neither a writ of course nor a writ of right, but that it will be granted if the duty is in the nature of a public duty, and specially affects the rights of an individual, provided there is no more appropriate remedy. This court has always refused to issue a mandamus if there is another remedy open to the party seeking it. This is one of the reasons, no doubt, why, where there is a visitor of a corporate body, the court will not interfere in a matter within the province of the visitor, and especially this is so in matters relating to educational bodies such as colleges."*** See also **Republic vs. Town Clerk, Kisumu Municipality, Ex Parte East African Engineering Consultants [2007] 2 EA 441**. This procedure was dealt with extensively in **Shah vs. Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543** where **Goudie, J** eloquently, in my view, expressed himself, *inter alia*, as follows: ***“Mandamus* is essentially English in its origin and development and it is therefore logical that the court should look for an English definition. *Mandamus* is a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent. Thus it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual. *Mandamus* is neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do or not to do something; the duty itself being of an imperative nature… In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fulfilment of which some other person has an interest the court has jurisdiction to grant *mandamus* to compel the fulfilment…The foregoing may also be thought to be much in point in relation to the applicant’s unsatisfied judgment which has been rendered valueless by the refusal of the Treasury Officer of Accounts to perform his statutory duty under section 20(3) of the Government Proceedings Act. It is perhaps hardly necessary to add that the applicant has very much of an interest in the fulfilment of that duty…Since *mandamus* originated and was developed under English law it seems reasonable to assume that when the legislature in Uganda applied it to Uganda they intended it to be governed by English law in so far as this was not inconsistent with Uganda law. Uganda, being a sovereign State, the Court is not bound by English law but the court considers the English decisions must be of strong persuasive weight and afford guidance in matters not covered by Uganda law…English authorities are overwhelmingly to the effect that no order can be made against the State as such or against a servant of the State when he is acting “simply in his capacity of servant”. There are no doubt cases where servants of the Crown have been constituted by Statute agents to do particular acts, and in these cases a *mandamus* would lie against them as individuals designated to do those acts. Therefore, where government officials have been constituted agents for carrying out particular duties in relation to subjects, whether by royal charter, statute, or common law, so that they are under a legal obligation towards those subjects, an order of *mandamus* will lie for the enforcement of the duties…With regard to the question whether *mandamus* will lie, that case falls within the class of cases when officials have a public duty to perform, and having refused to perform it, *mandamus* will lie on the application of a person interested to compel them to do so. It is no doubt difficult to draw the line, and some of the cases are not easy to reconcile… It seems to be an illogical argument that the Government Accounting Officer cannot be compelled to carry out a statutory duty specifically imposed by Parliament out of funds which Parliament itself has said in section 29(1) of the Government Proceedings Act shall be provided for the purpose. There is nothing in the said Act itself to suggest that this duty is owed solely to the Government….Whereas *mandamus* may be refused where there is another appropriate remedy, there is no discretion to withhold *mandamus* if no other remedy remains. When there is no specific remedy, the court will grant a *mandamus* that justice may be done. The construction of that sentence is this: where there is no specific remedy and by reason of the want of specific remedy justice cannot be done unless a *mandamus* is to go, then *mandamus* will go… In the present case it is conceded that if *mandamus* was refused, there was no other legal remedy open to the applicant. It was also admitted that there were no alternative instructions as to the manner in which, if at all, the Government proposed to satisfy the applicant’s decree. It is sufficient for the duty to be owed to the public at large. The prosecutor of the writ of *mandamus* must be clothed with a clear legal right to something which is properly the subject of the writ, or a legal right by virtue of an Act of Parliament… In the court’s view the granting of *mandamus* against the Government would not be to give any relief against the Government which could not have been obtained in proceedings against the Government contrary to section 15(2) of the Government Proceedings Act. What the applicant is seeking is not relief against the Government but to compel a Government official to do what the Government, through Parliament, has directed him to do. Likewise there is nothing in section 20(4) of the Act to prevent the making of such order. The subsection commences with the proviso “save as is provided in this section”. The relief sought arises out of subsection (3), and 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. The fact that the Treasury Officer of Accounts is not distinct from the State of which he is a servant does not necessarily mean that he cannot owe a duty to a subject as well as to the Government which he serves. Whereas it is true that he represents the Government, it does not follow that his duty is therefore confined to his Government employer. In *mandamus* cases it is recognised that when statutory duty is cast upon a Crown servant in his official capacity and the duty is owed not to the Crown 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. Where a duty has been directly imposed by Statute for the benefit of the subject upon a Crown servant as *persona designata,* and the duty is to be wholly discharged by him in his official capacity, as distinct from his capacity as an adviser to or an instrument of the Crown, the Courts have shown readiness to grant applications for *mandamus* by persons who have a direct and substantial interest in securing the performance of the duty. It would be going too far to say that whenever a statutory duty is directly cast upon a Crown servant that duty is potentially enforceable by *mandamus* on the application of a member of the public for the context may indicate that the servant is to act purely as an adviser to or agent of the Crown, but the situations in which *mandamus* will not lie for this reason alone are comparatively few…*Mandamus* does not lie against a public officer as a matter of course. The courts are reluctant to direct a writ of *mandamus* against executive officers of a government unless some specific act or thing which the law requires to be done has been omitted. Courts should proceed with extreme caution for the granting of the writ which would result in the interference by the judicial department with the management of the executive department of the government. The Courts will not intervene to compel an action by an executive officer unless his duty to act is clearly established and plainly defined and the obligation to act is peremptory…On any reasonable interpretation of the duty of the Treasury Officer of Accounts under section 20(3) of the Act it cannot be argued that his duty is merely advisory, he is detailed as *persona designate* to act for the benefit of the subject rather than a mere agent of Government, his duty is clearly established and plainly defined, and the obligation to act is peremptory. It may be that they are answerable to the Crown but they are answerable to the subject…The court should take into account a wide variety of circumstances, including the exigency which calls for the exercise of its discretion, the consequences of granting it, and the nature and extent of the wrong or injury which could follow a refusal and it may be granted or refused depending on whether or not it promotes substantial justice… The issue of discretion depends largely on whether or not one should, or indeed can, look behind the judgment giving rise to the applicant’s decree. Therefore an order of *mandamus* will issue as prayed with costs.”** 1. In the present case the ex parte Applicant has no other option of realizing the fruits of the judgment since she is barred from executing against the Government directly. The government cannot therefore hide in the legal protection to put settlement of the well entitled Applicant’s decree *ad infinitum*. 2. Clearly, apart from mandamus, the Applicant has no option of ensuring that the judgment that she has been awarded is realized other than through the means she has nobly employed and followed due process as laid down in the law. 1. Unless this court intervenes and something is done, she will forever be left babysitting her barren decree contrary to the law and the objective of the administration of justice. This state of affairs cannot be allowed to prevail under our current Constitutional dispensation in light of the provisions of Article 48 of the Constitution which enjoins the State to ensure access to justice for all persons. 2. Access to justice cannot be said to have been ensured when persons in whose favour judgments have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgment due to roadblocks placed on their paths by actions or inactions of public officers. 3. To this court, public offices, it must be remembered are held in trust for the people of Kenya and Public Officers must carry out their duties for the benefit of the people of the Republic of Kenya. 4. To deny a citizen his/her lawful rights which have been decreed by a Court of competent jurisdiction is, in my view, unacceptable in a democratic society. Public officers must remember that under Article 129 of the Constitution executive authority derives from the people of Kenya and is to be exercised in accordance with the Constitution in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit. 5. The Respondents aspire to settle the decree at their convenience when the budget is allocated. There is no assurance when the amount will be ready. The Respondents cannot thus take refuge in the law that provides a clear procedure for their intervention to safeguard the interest of the Applicant. Section 21(4) of the Government Proceedings Act Cap 40 Laws of Kenya provides: *Save as provided in this section, no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Government of any money or costs, 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.* 1. The wider objective of the law is to ensure sanctity of human life including through obtaining reliefs that are available and to uphold this, the rule of law will always intervene where immunity threatens, sometimes with dire consequences. It is with this respect that the preamble to the Government Proceedings Act provides that it is “An Act of Parliament to state the law relating to the civil liabilities and rights of the Government and to civil proceedings by and against the Government; to state the law relating to the civil liabilities of persons other than the Government in certain cases involving the affairs or property of the Government; and for purposes incidental to and connected with those matters”. 1. The proceedings are rightly before this court and the court has jurisdiction to ensure the Applicant yields her right in the judgment. With respect to judicial review proceedings, it has been held time without a number that such proceedings are neither criminal nor civil. See **Jotham Mulati Welamondi vs. The Electoral Commission of Kenya Bungoma H.C. Misc. Appl. No. 81 of 2002 [2002] 1 KLR 4.** 2. Mandamus, in the circumstances is available to the Applicant not as a mode of execution but as an administrative action to compel action by the Respondents. Therefore, the institution of judicial review proceedings in the nature of *mandamus* cannot be equated with execution proceedings. 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. 3. The relief sought is not execution or attachment *per se.* 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 lower court, in accordance with a duty cast upon him by Parliament. 4. The fact that the 3rd Respondent is the Accounting Officer is not distinct from the State of which the 3rd Respondent is a servant and does not necessarily mean that the 3rd Respondent cannot owe a duty to the Applicant as well as to the Government which he serves. In *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 compelling him, as a servant, to do what he is under a duty, obliged to perform. 5. Where therefore a public officer declines to perform the duty after the issuance of an order of *mandamus*, his/her action amounts to insubordination and contempt of Court hence an action may perfectly be commenced to have them cited for such. Such contempt proceedings are no longer execution proceedings but are meant to show the Court’s displeasure at the failure by a servant of the state to comply with the directive of the Court given at the instance of the Republic, the employer of the concerned public officer and to uphold the dignity and authority of the court. 6. I have said enough to show that the Respondents must meet the claim as awarded in the lower court, due to the ex parte Applicant. 7. On costs, the Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of **Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR,** as follows: - “[18] It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. 1. There was no necessity to file the application if the Respondents were to timely act by honouring the demand by the Applicant. In any event, the decretal sum was due on the date of the decree. In the circumstances of this case, an award of costs of Kshs. 75,000/= to the Applicant as successful party is right, just and proper. Determination 1. The upshot is that I make the following orders: - 2. An Order of Mandamus is hereby issued to compel the 3rd Respondent to pay to the Applicant the sum of Kshs. 5,710,781.95 being the decretal amount owed to her in Nyeri CMCC No. E005 of 2024 certified on the judgment dated 20.11.2024, decree issued on 2.10.2025 and Certificate of Order Against the Government dated 14.11.2024. 3. An Order of Mandamus is hereby issued against the 3rd Respondent compelling him to pay interest as awarded by the trial court at 14% per annum from 20.11.2024 until payment in full. 4. That the costs of this application are awarded to the Applicant assessed at Ksh. 75,000/=. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **30th** day of **July, 2026**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of:-** No appearance for parties Court Assistant – Timothy