https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3877

Ngoje v Chief Executive Officer, National Irrigation Authority & another (Environment and Land Judicial Review Case E001 of 2026) [2026] KEELC 3877 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3877 (KLR) Republic of Kenya In the Environment and Land Court at Migori Environment and Land Judicial Review Case E001 of 2026 FO Nyagaka, J June 18, 2026 IN THE MATTER OF AN APPLICATION FOR THE JUDICIAL REVIEW ORDER OF MANDAMUS, DECLARATIONS, COMPENSATORY ORDERS, INTEREST AND COSTS AND IN THE MATTER OF ENFORCEMENT OF JUDGMENT, AWARD, ORDERS AND DECREE ISSUED BY THE LAND ACQUISITION TRIBUNAL IN FAVOUR OF THE APPLICANT, AGAINST NATIONAL IRRIGATION AUTHORITY, AN ENTITY OF THE GOVERNMENT Between Ezra Opiyo Ngoje Applicant and Chief Executive Officer, National Irrigation Authority 1st Respondent National Irrigation Authority 2nd Respondent Judgment 1.The Applicant has moved this Court through an Originating Motion dated 30th January 2026. He brought it pursuant to Articles 23(2) and (3), 47 (1), (2); 48; 50 (1) and 159 (2) (d) of the Constitution, Sections 13 (5) of the Environment and Land Court Act, Sections 7 of the Fair Administrative Action Act, Sections 21(3) (4) of the Governments Proceedings Act and Rules 11 of the Fair Administrative Action Rules 2024. He sought the following orders:1.…Spent2.A declaration that the Respondents are bound but are in violation of Articles 10, 47(1) (2) and 232 of the Constitution and are in breach of section 4 of the Fair Administrative Actions Act and section 21 (3) of the Government Proceedings Act, which places an obligation on the Respondents to act expeditiously, efficiently and lawfully for failure to pay the costs and that failure to give reasons for such inaction and conduct to the Applicant, is a violation of his rights under Article 47 (2) and section 4 (2) and (3) of the Fair Administrative Actions Act.3.A declaration that the Respondents failure absent any reasons to comply with section 21 (3) of the Government Proceedings Act to pay the Applicant costs in LAT Dispute No. E008 of 2024, as per the certificate of costs against the Government dated 16th April 2025 as served on the Respondents is a violation of the Applicant’s right to Fair administrative actions, violates the Constitution and statute law.4.Judicial Review Order of Mandamus be issued in favour of the Applicant directing the 1st Respondent as the 2nd Respondent’s accounting officer to pay the Applicant costs of Kshs 356,675/= in the certificate of order against the government dated 16th April 2025.5.The Respondent be ordered to pay interest on the costs at the rate of 14% per annum from 16th April 2025 until payment in full.6.The Applicant be awarded compensatory damages for violation of his rights under Article 47 (1) and (2) of the Constitution and for breach of the requirements of the Fair Administrative Actions in relations to the payments of costs in LAT Dispute No. E008 of 2024.7.Costs of the application be provided for. 2.The Judicial Review Application is premised on 27 grounds on its face as well as the depositions in Applicant’s Supporting Affidavit which he swore on 30th January 2026. The Applicant contends that he lodged a claim for trespass against the Respondents with regard to North Kadem/Kanyuor/602 at the Land Acquisition Tribunal. At the conclusion thereof, he was awarded costs of KShs. 356,675/= with interest at 14% per annum from the date of the decree. The Applicant asserts that the Ruling by the Deputy Registrar on the costs of the Tribunal was delivered on 20th March 2025 and a Certificate of Costs dated 15th April 2025 subsequently issued and served on the Respondents. The Applicant maintains that despite numerous reminders including the letter dated 30th May 2025 the Respondents have refused to pay up. The Applicant urges the Court to allow the application in view of the fact that he has met the prerequisites for execution against the government. Furthermore, he contends that the 1st Respondent as the accounting officer of the 2nd Respondent is, under the Public Finance Management Act, behooved to make the payment. 3.The Respondents opposed the application through Grounds of Opposition dated 26th May 2026. They contend that the application is premature and procedurally defective for failure to comply with the mandatory provisions of the Government Proceedings Act. In particular, they argue that the Applicant has neither obtained nor served a Certificate of Order against the Government upon the Honourable Attorney General as required under Section 21 of the Act, which they maintain is a prerequisite to the institution of enforcement proceedings and the grant of an order of Mandamus. The Respondents further contend that the Honourable Attorney General has not been joined as a party to the proceedings despite being a necessary party under the Government Proceedings Act, thereby rendering the enforcement process incompetent. They also contend that no statutory duty to satisfy the decretal sum has arisen because the Certificate of Order against the Government has not been served upon the Attorney General. Consequently, they argue that an order of mandamus cannot issue to compel the performance of a duty that has not crystallized. 4.In conclusion the Respondents assert that there is no evidence that they have refused or neglected to settle the decretal amount. According to them, the Applicant has not demonstrated proper service of the relevant documents or made a lawful demand for payment. On those grounds, they urge the Court to find that the Originating Motion is devoid of merit, amounts to an abuse of the judicial review process, and should be dismissed with costs. 5.The application was canvassed by way of written submissions. Applicant’s Submissions 6.From the outset the Applicant submits that there is no requirement for leave to apply for the Judicial Review order sought herein, hence the procedure he has invoked suffices. He relies on Mwangi & 2 others v Managing Director, Nairobi city Water & Sewerage Company Limited & another (Judicial Review Application E010 of 2025) [2025] KEHC 325 (KLR), where it was underscored that practitioners need to embrace changes in the law that make access to justice easier and convenient while making reference to the Fair Administrative Actions Act and the Rules thereunder. 7.He asserts that the application is meritorious in view of the fact that he had obtained judgment before the Land Acquisition Tribunal in TRLAP No. E008 of 2024, together with an award of costs, which remained unsatisfied despite service of the judgment, decree, certificate of taxation and Certificate of Order against the Government and reminders upon the Respondents to pay the costs. Moreover, he contends that the Tribunal declined jurisdiction and directed the Applicant to seek relief before this court. 8.As concerns execution against the government entities, the Applicant submits that Section 21 (4) of the Government Proceedings Act prohibits ordinary attachment proceedings, hence the only avenue available to him is an order of mandamus. In support of this proposition, the Applicant relies on Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR, where Odunga J (as he then was) underscored that because execution cannot issue against the Government, mandamus remains the only avenue through which a successful litigant may realize the fruits of a judgment. The Applicant also cites Republic v County Secretary, Nairobi City County & Another ex parte Wachira Nderitu Ngugi & Co. Advocates [20161 eKLR, in which the Court held that no execution can issue against government property and that the appropriate remedy is issuance of an order of mandamus directed at the responsible accounting officer. Further reliance is placed on Kenya National Examination Council v Republic ex parte Geoffrey Gatheníi Njoroge & 9 Others [1997] eKLR, where the Court explained that mandamus is a public law remedy issued to compel the performance of a statutory duty where a public officer or body has failed to act. In view of the foregoing, it maintains that the Chief Executive Officer of the National Irrigation Authority, as the accounting officer bears a statutory duty under Section 21(3) of the Government Proceedings Act to satisfy sums certified as payable by a court or tribunal. 9.Having satisfied all conditions for grant of the order of mandamus including service of a Certificate of Order against the Government, demand for payment, the passage of sufficient time, as well as lack of explanation from the Respondents, the Applicant contends that the Respondents’ continued inaction amounts to breach of the Respondents’ statutory obligations and violates the Applicant’s rights to fair administrative action and access to justice under Articles 47 and 48 of the Constitution. He relies on the decision of Five Star Agencies Limited & another v National Land Commission & 2 others (Civil Appeal E290 & 328 of 2023 (Consolidated)) [20241 KECA 439 (KLR), where the Court of Appeal reiterated that execution against government entities is pursued through mandamus directed at the relevant public officer responsible for settlement of the decree. 10.Concerning the claim for damages, the Applicant submits that the prolonged failure to satisfy the decree, despite service of all requisite documents and repeated demands, amounted to a violation of his constitutional right to fair administrative action. Reliance is placed on Migori County Government & Another v Migori County Transport Sacco [2021] KECA 7 (KLR), where the Court of Appeal upheld an award of damages for violation of the right to fair administrative action. The Applicant therefore urges the Court to award compensatory damages in addition to granting the orders of mandamus and payment of interest. 11.In conclusion, the Applicant maintains that the Respondents are under a clear statutory duty to pay the costs, given that execution against a government entity can only be achieved through mandamus. He therefore urges the court to compel payment of the decretal amount together with interest, grant the declaratory reliefs sought, award damages for violation of constitutional rights together with costs of the application. Respondents’ Submissions 12.In clarifying on the opposition to the Judicial Review application the Respondent identifies the following issues for determination:1.Whether the Applicant’s Originating Motion Application is merited;2.Whether the Applicant is entitled to prayer (b), (c) and (f); and3.Who should bear the cost of this Application 13.On the first issue the Respondent submits that the application is premature and incompetent as there is no evidence of service of the Certificate of Order against the government on the Attorney General. They assert that the Attorney General is a necessary party in proceedings seeking enforcement of a decree against the Government under Sections 12 and 21 of the Government Proceedings Act and that failure to serve the Attorney General renders the application fatally defective. Moreover, they maintain that the statutory duty to satisfy a decree only arises after service of the Certificate of Order against the Government and, absent such service, no legal duty exists capable of being enforced through an order of mandamus. They therefore contend that the Applicant’s attempt to compel payment without compliance with the procedure under Section 21 of the Government Proceedings Act is untenable. They rely on Republic v Permanent Secretary Office of The President Ministry Of Internal Security & another Ex-Parte Nassir Mwandihi [2014] KEHC 6027 (KLR), where the court held that before an order of mandamus can issue there must be proof of compliance with the Government Proceedings Act, including issuance of the Certificate of Costs and Certificate of Order against the Government, service thereof and a demand for payment. With the rationale being to grant the government adequate notice to make arrangements to satisfy the decree. They further cite Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex-parte Fredrick Manoah Egunza [2012] KEHC 1643 (KLR), in which it was opined:“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.” 14.Reliance is also placed on Republic v County Secretary Migori County Government & another [2019] KEHC 7418 (KLR), where the court emphasized strict compliance with Section 21 of the Government Proceedings Act and the requirement for issuance and service of the prescribed certificates before mandamus can issue. 15.As regards the Applicant’s entitlement to prayers b, c, e and f of the application, the Respondent submits that they are untenable to the extent that they seek reliefs for violation of the Constitution. They therefore maintain that the Applicant’s prayers for declarations that the Respondents’ failure to pay the taxed costs violated Article 47 of the Constitution and Sections 4(2) and 4(3) of the Fair Administrative Action Act, as well as the prayer for compensatory damages, are not available in judicial review proceedings. 16.They assert that judicial review is concerned with the legality of the decision-making process rather than the merits of a dispute and that declaratory and compensatory reliefs of a constitutional nature ought to be pursued through a constitutional petition. In support of this argument, they cite Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2015] KESC 13 (KLR), where it was stated:“However, notwithstanding our findings based on the common law principles of estoppel and res- judicata, we remain keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law. By clothing their grievance as a constitutional question, the 1st, 2nd and 3rd respondents were seeking the intervention of the High Court in the firm belief that, their fundamental right had been violated by a state organ. Indeed, this is what must have informed the Court of Appeal’s view to the effect that the appellants (respondents herein) were entitled to approach the court and have their grievance resolved on the basis of articles 22 and 23 of the Constitution.” 17.They further rely on Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR), in which the Supreme Court stated as follows:“It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Page 8 of 10 Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.” 18.In view of the foregoing, the Respondents submit that the prayers sought would require the Court to undertake a merit review and determine alleged constitutional violations, remedies which are unavailable in the present judicial review proceedings and ought to be pursued through a constitutional petition under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. 19.On costs, the Respondents submit that they are entitled to the same as the Applicant failed to follow the prescribed statutory procedure and unnecessarily subjected them to litigation, thereby occasioning avoidable expense. They draw attention to the fact that the Certificate of Costs as well as the Certificate of Order against the Government was not served upon the Attorney General. 20.They rely on Republic v. Rosemary Wairimu Munene, Ex-Parte Applicant v. Ihururu Dairy Farmers Co-operative Society Ltd, Judicial Review No. 6 of 2014, as cited in Republic v Public Procurement Regulatory Authority; Kenya Bureau of Standards & 2 others (Interested Parties); EAA Company Limited (Exparte Applicant) (Judicial Review Application 88 of 2020) [2023] KEHC 232 (KLR), where the court held that the purpose of an award of costs is to compensate the successful party rather than punish the unsuccessful one. They further rely on Peter Muriuki Ngure v. Equity Bank (K) Ltd [2018] eKLR, where the court explained that costs generally follow the event and that a successful party is entitled to the costs associated with issues upon which it succeeds. Analysis And Determination 21.I have considered the Originating Motion, the Affidavit in support thereof, the Grounds of Opposition and the rival submissions filed by the parties. Two issues arise for determination, namely: whether the Applicant has satisfied the statutory conditions for the grant of an order of mandamus and whether the constitutional and declaratory reliefs sought are available in these proceedings. 22.One key preliminary issue to consider is whether the firm of G & A Advocates LLP was properly on record hence whether the documents it filed were validly on the record. 23.I have perused the court record. My observation is that the law firm that filed the grounds of opposition as well as the submissions on behalf of the Respondents. There is no Notice of Appointment of Advocates or Appearance on behalf of the firm of advocates. This raises the question on whether the law firm was not properly on record. 24.Order 9 of the Civil Procedure Rules provides for agents that are authorized to represent parties in courts. Rule 1 thereof provides that“Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by an advocate duly appointed to act on his behalf.’’ 25.In Kimeto & Associates Advocates v Mungai & another (Miscellaneous Civil Application E094 of 2024) [2026] KEHC 824 (KLR) (Commercial and Tax) (30 January 2026) (Ruling) the court held that,“Order 9 Rule 1 provides that any application, appearance, or act in Court which the law requires or authorizes to be done by a party may, unless otherwise expressly provided, be undertaken in three distinct ways:a.By the party in person;b.By the party’s recognized agent; orc.By an advocate duly appointed to act on the party’s behalf. 7.The language of this provision is clear and categorical. It establishes that the right of audience is not open-ended but is confined to those three categories. An advocate cannot simply appear in Court on behalf of a party without demonstrating that he or she has been duly appointed. The appointment must be formalized through the filing of the requisite documentation, so as to ensure that the Court and the opposing party are certain as to who is properly authorized to act.” 26.Having so established as above, it is my finding that the firm of G & A Advocates LLP was not properly on record for the Respondents. Accordingly, the documents they purportedly filed on behalf of the Respondents are hereby struck out: they are be deemed as though they were never filed, in the first place. 27.The upshot of the foregoing is that the Applicant’s assertions and depositions are not controverted. This being the position, the allegations put forward by the applicant will be deemed as a true reflection of the factual situation, in the absence of any other evidence to the contrary. That is to say, that any fact the depositions in the Supporting Affidavit put forth and found to be as it is shall be taken to be so in so far as it is proven by way of support by sufficient documentary or other evidence (see Mochama v Ogoti (Civil Appeal E083 of 2023) [2025] KEHC 1468 (KLR) (26 February 2025) (Judgment). This now turns me to the merits or otherwise of the application. 28.It is trite that under Section 107 of the Evidence Act, he who alleges the existence or nonexistence of a fact he wishes the court or tribunal to believe to be true or rely on proves it, unless the burden is specifically placed by the law on another person. Thus, the Applicant is obligated to demonstrate to the satisfaction of the Court on a balance of probabilities that he complied with the requirements of Section 21 of the Government Proceedings Act in order for the instant proceedings to be deemed validly before the Court. 29.The principal relief sought by the Applicant is an order of mandamus compelling the 1st Respondent to pay Kshs. 356,675/= being costs allegedly awarded to him in Land Acquisition Tribunal Dispute No. E008 of 2024. The application is predicated on sections 21(3) and (4) of the Government Proceedings Act, the Applicant contending that he obtained a Certificate of Costs and a Certificate of Order against the Government which were served upon the Respondents but that payment has not been forthcoming. 30.The law governing satisfaction of decrees against Government entities is settled. Section 21 of the Government Proceedings Act prescribes a mandatory procedure which must be complied with before an order of mandamus can issue. In particular, the successful litigant must obtain a Certificate of Order or a Certificate of costs against the Government and serve the same upon the Honourable Attorney General. It is only upon such service that the statutory obligation imposed under section 21(3) crystallizes and becomes enforceable against the accounting officer concerned. 31.Section 21 (1) of the Government Proceedings Act provides as follows concerning the satisfaction of decrees against 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 orderProvided 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. 32.Section 21 (4) of the said Government Proceedings Act provides as follows: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. 33.In Republic v Principal Secretary, Ministry of Environment and Natural Resources & another; Munyao & another (Ex parte Applicants) (Judicial Review Application E390 of 2025) [2026] KEHC 1263 (KLR) (Judicial Review) (10 February 2026) (Judgment), the court held:11.In Republic v Chief Executive Officer, National Irrigation Authority & another; Nyaoke (Ex parte Applicant) (Judicial Review Application E052 of 2025) [2026] KEELC 170 (KLR) (22 January 2026) (Judgment) my brother Judge Kullow J stated as follows regarding mandamus:“The scope of an order of mandamus was discussed by the Court of Appeal in the case of Kenya National Examination Council vs. Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR thus:“What is the scope and efficacy of an order of Mandamus? Once again, we turn to Halsbury’s Law of England, 4th Edition Volume 1 at page 111 From Paragraph 89. That learned treatise says:“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; 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. “At paragraph 90 headed “the mandate” it is stated: “The order must command no more than the party against whom the application is made is legally bound to perform.Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”In Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR, it was held that where a judgment creditor has complied with Section 21 of the Government Proceedings Act and the Government fails to honour its obligation, an order of mandamus lies to compel the performance of that statutory duty.The principles established in the aforementioned cases affirm that a mandamus order compels the execution of a public duty imposed by statute on an individual or entity, where such individual or entity has neglected to carry out that duty, thereby prejudicing a party with a legal entitlement to its performance.The question is therefore whether Ex parte the applicant complied with the elaborate procedure for applying for mandamus under section 21 of the Government Proceedings Act? A court will only issue an order of mandamus if it is shown that the requirements under Section 21 of the Government Proceedings Act have been fulfilled. In the case of Republic vs. Permanent Secretary Office of the President Ministry of Internal Security & Another ex parte Nassir Mwandihi [2014] eKLR, Odunga, J. (as he then was), held as follows:“...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 in 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...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 obligations to satisfy decrees and orders of the Court. 34.In Republic vs. Permanent Secretary Ministry of State for Provincial Administration and Internal Security [2012] eKLR, the Court elaborated on the procedure for satisfying decrees against Government in the following terms:“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...’’ 35.At the risk of repeating myself, as stated above, the burden lay upon the Applicant to demonstrate strict compliance with the requirements of Section 21 of the Government Proceedings Act. Although the Applicant repeatedly asserts that the Certificate of Order against the Government and Certificate of Costs were served, the material placed before the Court does not demonstrate service of the Certificates upon the Honourable Attorney General. The Applicant contends that service was effected through an email dated 30th May 2025. However, Order 5 Rule 22B (2) stipulates that service shall be deemed to have been effected when the sender receives a delivery receipt. At sub -rule (4) it is further stipulated that an affidavit of service attaching the delivery receipt should be filed confirming service. 36.I have carefully examined the record. No such affidavit (of service) has been filed. Instead, the applicant deposed about the steps he took in a bid to realize the payments annexure number EON 10 is a Notice of Intention to sue which was issued against respondents. It was dated 16th July 2025. It was a demand letter written by M/S. Okong’o Wandago & Company Advocates requiring the payment of the sum prayed for in these Judicial Review Proceedings would be instituted against them. Further there is a printout of an email said to have been sent out on 24th September 2025 to the following email addresses, namely, ceo@irrigationauthority.go.ke; communications@irrigationauthority.go.ke; and complaints@irrigationauthority.go.ke. There is no delivery receipt of the said email by any of the parties or addresses purported to be recipients. 37.Additionally, the email said to be sent out to the three addresses refers to letters attached to it. A further examination of the accompanying annextures shows only one letter and the said email to which there is only one “pdf” attachment. This leaves the court to believe that it is that was only the annexed demand letter that was emailed, if at all the Email was sent and delivered. 38.Furthermore, annexture EON 1 is a Certificate of Order and Costs against Government. It is dated 27th May 2025. At Paragraph five of the supporting affidavi the applicant the depones that the Certificate shows the indebtedness of government to him. 39.Of critical importance is whether or not the Certificate of Order and Costs against Government was served on the respective parties as required by Section 21 of the Government Proceedings Act in order for the institution of the instant Judicial Review proceedings to be deemed to have been competently or validly brought. This calls on this court to examine on the Applicant’s depositions regarding service thereof. 40.This Court has carefully considered the application in its totality as well as the submissions of the Applicant. The Applicant contends that he served the Certificate on the Attorney General. The Respondents argue that he did not. These two contentions can only be resolved using the documents presented by both parties to support their respective standpoints. 41.Although the applicant maintains that she served the documents mandated under Section 21 of the Government Proceedings Act upon the Respondents and the Attorney General, a close scrutiny of the annextures EON 7, EON 8, EON 9 and EON 10 are the only one to confirm the position. Annexture EON 7 is the Certificate of Taxation, EON 8 is a three page letter dated 30th May 2025 addressed to the Engineer M. Muasya the Chief Executive Officer of the 2nd Respondent, and copied to the Office of the Attorney General, the office of G & A Advocates LLP and the Applicant. Annexture EON 9 is an Email dated 30th May 2026 said to attach four documents, amongst which are the forwarding letter, Certificate of Order for costs against Government, the Decree, and Certificate of Costs. To it is attached onely one pdf document (sign or mark of attachment titled, “Nairobi Trilap No. E008 Letter.pdf.” Annexture EON 10 is another email dated 24th September 2025 said to communicate by way of attachment a Notice of Intention to Sue. It is shown to have been emailed to the respondents whose addresses I have noted above but not to the Attorney General. It attaches a letter dated 16th July 2025 addressed to the two Respondents herein. 42.I have carefully considered all the annextures. I have not found any evidence of such service of ALL the documents above by way of proof of delivery of such Emails mentioned on all the Respondents, and more specifically upon the Attorney General who is a critical office required to be served. There is no delivery report filed by the applicant to prove that service was affected as alleged and as mandated by Order 5 Rule 22B (2) of the Civil Procedure Rules, 2010 which provides that service shall be deemed to have been effected when the sender receives a delivery report, and Order 5 Rules 22B(4) to the effect that such a delivery receipt be filed with an Affidavit of service by an officer of the court. 43.The requirement of service is not a mere procedural technicality capable of being overlooked under Article 159(2)(d) of the Constitution. It is a fundamental component of the process of the fundamental constitutional rights to fair trial and fair hearing, which basically stems from the rules of natural justice the main one being that one should not be condemned unheard. It is the statutory mechanism through which the Government is formally notified of the decree and afforded an opportunity to make administrative and budgetary arrangements for settlement. To skip this critical step or trivialize it would be akin to condemning the government before giving it an opportunity to be heard on its duty to pay as to whether it can or is willing or unwilling to pay the costs. Without proof of such service, the statutory duty sought to be enforced cannot be said to have arisen. The application therefore was then moved before its maturity could reach or it crystallizes. 44.Turning to the Applicant’s prayers seeking declarations that the Respondents are in violation of Articles 10, 47(1), 47(2) and 232, and the others cited, of the Constitution, this Court notes that the present proceedings were commenced as a judicial review application under the cited constitutional provisions, the Fair Administrative Action Act and the Fair Administrative Action Rules, 2024. However, the Applicant has simultaneously invited the Court to undertake a constitutional inquiry and award constitutional remedies including declarations of constitutional violations and compensatory damages. 45.Article 23(3) of the Constitution empowers a court to grant appropriate relief, including declarations and compensation, in proceedings brought for enforcement of the Bill of Rights. Likewise, Article 22 grants every person the right to institute court proceedings claiming that a right or fundamental freedom has been denied, violated, infringed or threatened. Such proceedings are ordinarily commenced through a constitutional petition under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules. While judicial review has undoubtedly been recognized by the Constitution of Kenya, 2010 as a remedy or relief, it remains conceptually distinct from a constitutional petition seeking reliefs on certain violations of fundamental rights and freedoms of individuals. Judicial review primarily interrogates the legality, procedural propriety and rationality of administrative action, whereas constitutional litigation concerns the determination of alleged violations of constitutional rights and the grant of remedies flowing therefrom. 46.The constitutional provisions relied upon by the Applicant are Articles 23(2) and (3), 47(1), 47(2), 48, 50(1) and 159(2)(d) of the Constitution. The Applicant seeks declarations that those provisions have been violated and further seeks compensatory damages. Those prayers require the Court to determine substantive constitutional questions and to grant appropriate constitutional remedies. Such reliefs transcend the scope of the present judicial review proceedings and ought to have been pursued through a properly instituted constitutional petition in which the alleged violations are pleaded with the precision required by law. 47.The issue in the instant Judicial Review application is that the Respondents have delayed the payment of costs awarded in his favour, arising from and taxed in a dispute the Applicant won against the 2nd Respondent before a Tribunal. How does the delay, if any, translate to a violation of the applicant’s rights? Bearing in mind that this is a Judicial Review application and not a constitutional petition, it is noteworthy, and this court is clear in its mind, that once a party alleges and invokes a violation of a constitutional right in any other pleading or claim besides a Petition, the principles of specificity, clarity and precision do not cease to apply. They would as apply in as much equal force as in petitions. This requirement of clarity, specificity and precision was stated in the Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272 (the Anarita Karimi Case) where the High Court held,“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 48.The Court of Appeal in the Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (2013) eKLR decision emphasized this requirement while adding that it did not require exactitude. The question then that remains in the instant application is how is the delay in payment of taxed costs a violation of the applicant’s constitutional right. The applicant relies on Articles 23(2) and (3), 47(1), 47(2), 48, 50(1) and 159(2)(d) of the Constitution to base his claim herein. The applicant submits that the delay in payment of the taxed costs went against his rights enshrined in the constitutional provisions above, particularly, that the Respondents have outrightly and expressly refused to pay the costs hence violating Article 47(1) of the Constitution and the Fair Administrative Action Act and by failing to give a written explanation contrary to Article 47(2). Further, that the actions are contrary to Articles 10 and 19(1) and (2) of the Constitution 2010. 49.The sticky question is, is recovery or payment of a party’s costs not an issue that statutorily provided for and could be adequately handled through other available means than through a constitutional claim? In my humble view, regarding the applicant’s claim hereinabove, this Court is not persuaded that every delay or failure in settlement of a decree against a government entity automatically translates into a constitutional violation. More importantly, where Parliament has prescribed a specific statutory procedure for enforcement of decrees against the Government, under the Government Proceedings Act, a litigant must first demonstrate strict compliance with that procedure before alleging violation of constitutional rights arising from non-payment. 50.This above principle has been buttressed by the Supreme Court in Communication Commission of Kenya & Others v Royal Media Services Limited & 5 others [2014] eKLR in the following words:“The appellants in this case are seeking to invoke ‘the principle of avoidance’; also known as ‘constitutional avoidance’. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.” 51.Additionally, the Court of Appeal has now settled that constitutional litigation is not open for every claim which may properly be dealt with under alternative existing mechanisms. (See Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & Another [2016] eKLR). I so find in this application: this is not one of those claims that may be adjudicated as such. In any event, it failed the constitutional specificity and precision as the Anarita Karimi (supra) and Mumo Matemu (supra) decisions guide. 52.Having found that the Applicant has not demonstrated compliance with the mandatory requirements of Section 21 of the Government Proceedings Act, the foundation upon which the alleged constitutional violations are premised collapses. In any event, the constitutional declarations and compensatory damages sought are not properly available in these judicial review proceedings. 53.The Court therefore finds that the Originating Motion is incompetent and premature. The Applicant failed to demonstrate service of the Certificate of Order against the Government and the Certificate of Costs upon the Honourable Attorney General as required under section 21 of the Government Proceedings Act. Consequently, no statutory duty capable of enforcement through mandamus has arisen. Further, the Applicant improperly sought constitutional declarations and compensatory damages within judicial review proceedings, reliefs which ought to have been pursued through a constitutional petition. Accordingly, the Originating Motion dated 30th January 2026 is hereby struck out. 54.Regarding the issue of costs, I am alive to the provisions of Section 27 of the Civil Procedure Act that costs follow the event. The event herein is that the application has failed. But there was an earlier finding that the Respondents did not properly appoint the counsel who filed the responses and submissions. Thus, the application having been deemed as not having been properly opposed, then each party shall bear their own costs in the application. 55.Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 18TH DAY OF JUNE 2026.HON. DR. IUR NYAGAKAJUDGEIn the presence of,Mr. Odero M. Advocate holding brief for Winnie Awuor for the ApplicantsMr. D. Ochola Advocate for the Respondents