Kipkoros t/a Riverside v County Chairman Liquor Licencing Committee — Uasin Gishu County & 2 others (Constitutional Petition 9 of 2019) [2026] KEHC 13183 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **CONSTITUTIONAL PETITION NO. 9 OF 2019** **ZACHARIAH KIPKOROS T/A RIVERSIDE PETITIONER** **=VERSUS=** **THE COUNTY CHAIRMAN LIQUOR LICENCING COMMITTEE — UASIN GISHU COUNTY ……………………………………………….. 1ST RESPONDENT** **THE DIRECTOR OF ALCOHOL DRINKS OF THE COUNTY GOVERNMENT OF UASIN GISHU 2ND RESPONDENT** **THE COUNTY GOVERNMENT OF UASIN GISHU 3RD RESPONDENT** **CORAM: Before Justice R. Nyakundi** **M/s Mukabane & Kagunza Advocates LLP for the Petitioner** **JUDGMENT** *(On the Notice of Motion dated 18th February 2026)* # **A. INTRODUCTION** 1. Before me for determination is the Notice of Motion dated 18th February 2026, brought under Section 21 of the Government Proceedings Act, Cap. 40, Order 29 Rule 3 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law. It is supported by the affidavit of Zachariah Kipkoros sworn on 18th February 2026 and was certified urgent by a Certificate of Urgency of even date. 2. The Motion seeks two substantive orders. The first is that this Court be pleased to issue a Certificate of Order Against the Government and a Certificate of Costs under Se ction 21 of the Government Proceedings Act, in favour of the Petitioner and against the County Government of Uasin Gishu, certifying (i) the decretal sum of Kshs. 200,000/= awarded by the Judgment delivered on 29th July 2022, and (ii) taxed costs of Kshs. 443,595/=. The second is that the costs of the application be provided for. 3. The application is founded on the grounds set out on its face and in the supporting affidavit, namely: that this Court delivered Judgment on 29th July 2022 in favour of the Petitioner in the sum of Kshs. 200,000/= together with costs; that the costs were subsequently taxed at Kshs. 443,595/= and a Certificate of Costs issued; that the 3rd Respondent is a County Government; that execution cannot issue against a County Government; that under Section 21 of the Act the Petitioner must first obtain a Certificate of Order Against the Government and a Certificate of Costs before payment can be effected; that more than twenty-one days have lapsed since delivery of the Judgment and since taxation of the costs; and that unless the certificates issue the Petitioner will be unable to realize the fruits of his Judgment. 4. By a Ruling delivered on 6th March 2026 this Court directed that the application be served upon the Respondents. An Affidavit of Service dated 2nd April 2026 is on record evidencing that service was duly effected, and a hearing date was thereafter taken. 5. Notwithstanding service, the Respondents have neither filed a replying affidavit nor grounds of opposition, and no submissions have been filed on their behalf. The application is accordingly unopposed. I remind myself, however, that the fact that an application stands unopposed does not entitle an Applicant to the orders sought as of course. The Court must still satisfy itself that it has the power to make the orders, and that the statutory conditions on which that power depends have been met. That is particularly so where, as here, the orders sought engage the machinery by which public funds are paid out. **Issues for Determination** 1. Three issues fall for determination: 1. Whether Section 21 of the Government Proceedings Act applies to a County Government; 2. Whether the statutory conditions for the issue of a certificate under Section 21 have been satisfied, and before whom the application properly lies; and 3. What orders, and what disposition as to costs, are appropriate. # **C. ANALYSIS AND DETERMINATION** # It is settled law in Kenya both within the prism of the Civil Procedure Act and Rules 2010 as subsequently amended by Parliament in subsequent years as read with the Government Proceedings Act that properties belonging to the Government are generally immune from routine coercive attachment in the same manner as private properties and Public Officers cannot be sent to civil prisons under standard execution of money decrees against the State or the County Government. # The aforesaid law has been fortified in many decisions by the Superior Courts. Therefore, now that the law is well settled an executing Court in possession of the decree capable of being enforced cannot go behind the decree nor can it question its legality or correctness because the judgment data is the State or the County Government for that matter. However, there is one exception to this general rule and that is where the decree is sought to be executed against the State or the County Government it must be validated within the provisions of the Government Proceedings Act. # In its primary provisions as hereunder referenced: ### ***3.*** *Right to sue the Government* *Where any person has a claim against the Government after the* *commencement of this Act and, if this Act had not been enacted, the claim might have been enforced in accordance with the provisions of the Petitions of Right Ordinance (Repealed), or might have been enforced by a proceeding provided by any statutory provisions repealed by this Act then, subject to the provisions of this Act, the claim may be enforced as of right by proceedings taken against the Government for that purpose in accordance with the provisions of this Act.* ### ***4.*** *Liability of the Government in tort* # *(1)Subject to the provisions of this Act, the Government shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject—(a)in respect of torts committed by its servants or agents;(b)in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and(c)in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property: Provided that no proceedings shall lie against the Government by virtue of paragraph (a) of this sub-Section in respect of any act or omission of a servant or agent of the Government, unless the act or omission would, apart from the provisions of this Act, have given rise to a cause of action in tort against that servant or agent or his estate.* # *(2)Where the Government is bound by a statutory duty which is binding also upon persons other than the Government and its officers, then, subject to the provisions of this Act, the Government shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity.* # *(3)Where any functions are conferred or imposed upon an officer of the Government as such either by any rule of the common law or by any written law, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Government in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.* ### ***9.*** *Civil proceedings in the High Court* # *(1)Subject to the provisions of this Act, all civil proceedings by or against the Government mentioned in the First Schedule to this Act are hereby abolished, and all civil proceedings by or against the Government in the High Court shall be instituted and proceeded with in accordance with rules of Court and not otherwise.(2)In this Section, the expression "rules of Court" means, in relation to any claim against the Government in the High Court which falls within the jurisdiction of that Court as a prize Court, rules of Court made under Section 3 of the Prize Courts Act, 1894 (57 & 58 Vict. c. 39.)* 1. To understand the scope of execution of decrees it is necessary to know the definition of a decree as defined in the Civil Procedure Act as being the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. 2. What the law provides is that the Government both at the National and County level, any delay in satisfying the decree of the Court without sufficient cause cannot be condoned for that would be tantamount in limiting Economic and Social rights of private citizens without justification. Hence the provisions of the CPA and the Government Proceedings Act to facilitate filing of applications for the enforcement of the decree which has been extracted by the judgment creditor for enforcement against both levels of Government. It is therefore clear that the County Government has not met its obligations of satisfying the decree as pleaded in the motion before this Court. That would form the basis of the merits or demerits of the application by the Applicant. ## ***(i) Whether Section 21 applies to a County Government*** 1. The premise of the whole application is that the 3rd Respondent, being a County Government, is not amenable to ordinary execution, and that the Petitioner must instead proceed under Section 21 of the Government Proceedings Act. That premise must be examined rather than assumed. 2. The 3rd Respondent is a County Government established under Article 176 of the Constitution and the County Governments Act, 2012, and is capable of suing and being sued. The Government Proceedings Act, on its long title and its terms, was directed at the Government of Kenya. The question whether its protections extend to the devolved units is therefore a live one. 3. That question is answered by the Statute itself. Section 21(5) of the Act provides that the Section shall, with necessary modifications, apply to any civil proceedings by or against a County Government, or to proceedings in connection with any arbitration in which a County Government is a party. The subsection was introduced by amendment for the express purpose of extending the Section to the devolved units. Section 21 accordingly applies to the 3rd Respondent, and applies to the Judgment and Decree in this Petition. 4. The consequence is that which the Petitioner pleads. By Section 21(4), save as provided in the Section, no execution or attachment or process in the nature thereof may issue out of any Court for enforcing payment by the Government of any such money or costs. The route to satisfaction is instead that laid down in Section 21(1) and (3): a certificate is issued by the proper Officer of the Court containing particulars of the order; the certificate states the amount payable; and the Accounting Officer for the department concerned pays the amount appearing by the certificate to be due, together with the interest, if any, lawfully due thereon. 5. That is the very course recently affirmed in *County Government of Nyamira v Bwoma* (Civil Appeal E030 of 2024) [2025] KEHC 19373 (KLR), where the Court held that satisfaction of a decree against a County Government is to proceed by the issuance of a certificate of order by the proper Officer, service of that certificate upon the County’s Accounting Officer, and, if payment is not then made, recourse to proceedings for mandamus. To like effect are *Republic v Kisii County Government Ex parte Benard Onkoba t/a Betico Auctioneers* [2020] eKLR and *Republic v Attorney General & Another Ex parte Stephen Wanyee Roki* [2016] eKLR. 6. I am aware of the observations of the High Court in *Absa Bank Kenya PLC v Kenya Deposit Insurance Corporation* [2024] eKLR casting doubt upon the constitutionality of Sections 13A and 21 of the Act, and of the contrary view taken in *Tom Ojienda & Associates v Nairobi City County; Cooperative Bank of Kenya (Garnishee)* [2024] KEELC 1662 (KLR), where it was held that those observations did not amount to a declaration of invalidity and that the provisions remain in full force. Nothing in this application turns on that controversy. The Petitioner does not challenge Section 21; he seeks to comply with it. On either view of the debate he is entitled to the certificate he asks for, and I say no more about it. 7. In my considered view, I think the Government Proceedings Act should be amended by Parliament to establish strict guidelines and timelines to prevent the National Government and the County Government as judgment debtors from using the statutory framework to frustrate execution and enforcement of decrees. It is lack of such procedural standards which the Accounting Officers have taken the advantage of to deny the protection and guarantees of civil rights already declared in favour of private citizens in the various level of Courts. I strongly take the view that the delay in execution of decrees against the Governments at the National and Devotional level frustrates the enjoyment of the fruits of the judgment by the judgment creditors and subsequently denies complete justice to the successful litigant. 8. As a general rule, I take judicial notice that the Civil Procedure Acts and Rules on execution proceedings fails in one key fundamental aspect a targeted timeline upon which the executing Courts must dispose off execution proceedings. Without necessarily sitting at the armchair of the Judge coordinate who dealt extensively with Section 13 of the Government Proceedings Act it may be as well be stated that the provisions in the Act has been used as tools to obstruct justice. I am made to understand that Kenya created its legal foundation from the union of India. This includes the Civil Procedure Act and Rules as now domesticated for application to the Kenyan people. For instance, Section 82 of the CPC which deals with execution against Government, it specifically provides and dictates that execution shall not be issued on any such decree unless it remains unsatisfied for a period of 3 months computed from the date of the decree. If the Government fails to satisfy the decree within Section 82 timeline, the decree holder can approach the High Court or Supreme Court for a writ of mandamus, forcing the Government Treasury or specific department to allocate funds to settle the pending decree. This is the lacuna which ought to be addressed as matter of urgency. ## ***(ii) Whether the statutory conditions are satisfied*** 1. Section 21(1) provides that where, in any civil proceedings by or against the Government, 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 an application made by or on behalf of that person, issue to that person a certificate in the prescribed form containing particulars of the order. The application may be 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 and the costs require to be taxed, at any time after the costs have been taxed, whichever is the latter. The proviso adds that if the Court so directs, a separate certificate shall be issued with respect to the costs ordered to be paid to the Applicant. 2. The obligation is expressed in mandatory terms. The proper Officer "shall" issue the certificate. The function is ministerial rather than adjudicative: the Officer does not revisit the order, weigh its merits or exercise a discretion as to whether the decree-holder deserves to be paid. He certifies what the Court has already decided. Once the statutory conditions are met, the decree-holder is entitled to the certificate as of right. 3. Measuring the present application against those conditions: * 1. There is an order in favour of the Petitioner against the Government. By the Judgment delivered on 29th July 2022 and the Decree extracted thereon, a declaration issued that the acts and omissions of the Respondents in denying the Petitioner a licence for the year 2019 and rejecting his application without reason were unconstitutional; damages of Kshs. 200,000/= were awarded for that infringement; and costs of the Petition were awarded together with interest on the decretal sum from the date of the Judgment. 2. It is more than twenty-one days that have elapsed from the date of the order/decree as the Judgment was delivered on 29th July 2022. Whereas the application was filed in February 2026. 3. The costs have been taxed. The Bill of Costs dated 16th August 2022 came up for taxation ruling on 26th May 2025 and was taxed at Kshs. 443,595/=. A Certificate of Costs to that effect was issued by the Deputy Registrar on 29th September 2025. The latter of the two statutory dates having passed, the entitlement has crystallized. 4. On the question of delay, I observe that although some three and a half years separate the Judgment from this application, Section 21 prescribes no limitation period for an application for a certificate, and the interval is in any event explained by the taxation process, the ruling on which was delivered only in May 2025 and the certificate issued in September 2025. Nor is enforcement of the Judgment otherwise time-barred, the period for enforcing a judgment under the Limitation of Actions Act being twelve years. I therefore find no bar arising from the passage of time. 5. I should also dispose shortly of any suggestion that the Court is *functus officio,* having delivered its Judgment in 2022. It is not. Proceedings under Section 21 are not a revisiting of the Judgment; they are part of the machinery by which the Judgment is satisfied. A Court retains jurisdiction over the enforcement of its own decree. There is no basis for such an argument on a Court being *functus officio.* A judgment from Civil Court can only be said to have been properly adjudicated as regulated by law when in totality enforcement and execution proceedings have ben processed and pressed in aid to answer the question that the existence of a protected right has been remedied by settling the money decree. There are no other specialized Courts in this legal system mandated by law to deal with execution and enforcement of judgments. My answer therefore to that kind of submissions is that there are no dedicated special Courts in Kenya established exclusively to handle the execution and enforcement of judgments. ## ***(iii) Before whom the application properly lies*** 1. One matter requires attention because it was not addressed by Counsel. Order 29 Rule 3 of the Civil Procedure Rules, under which the Motion is partly brought, provides that any application for a certificate under Section 21 of the Government Proceedings Act shall be made to a Registrar or, in the case of a Subordinate Court, to the Court; that any application under that Section for a direction that a separate certificate be issued with respect to costs ordered to be paid to the Applicant shall be made to the Court and may be made ex parte without a summons; and that such certificate shall be in one of Form Nos. 22 and 23 of Appendix A, with such variations as circumstances may require. 2. The rule therefore draws a distinction which the application before me does not. The application for the certificate of the order is to be made to the Registrar, consistently with the ministerial character of the function described above. It is only the direction that a separate certificate issue in respect of costs that must come to the Court - and that may be sought ex parte and with or without summons. 3. It follows that the Motion is, in part, addressed to the wrong Officer. I do not think that should be the end of it. Two considerations weigh against turning the Petitioner away on that footing. 4. First, the relief which does properly lie before the Court - the direction under the proviso to Section 21(1) that a separate certificate issue with respect to costs is squarely sought, and it is the direction on which the Petitioner’s ability to recover the taxed costs of Kshs. 443,595/= depends. Second, Article 159(2) (d) of the Constitution requires that justice be administered without undue regard to procedural technicalities, and Sections 1A and 1B of the Civil Procedure Act oblige the Court to give effect to the overriding objective of the just, expeditious, proportionate and affordable resolution of disputes. To send a decree-holder who has waited since July 2022 back to the registry to begin again, in respect of an application that is unopposed and to which he is in substance entitled as of right, would elevate form over substance and add cost and delay to no purpose whatever. 5. The Court being seized of the matter, the application having been served and not opposed, and the Petitioner’s entitlement being clear on the face of the record, I shall make the direction sought under the proviso and shall direct the Deputy Registrar to issue both certificates in the prescribed forms. That course respects the division of functions in Order 29 Rule 3 while sparing the parties a wholly sterile procedural detour. ## ***(iv) The state of the Decree*** 1. There is a further matter which, though not raised, I cannot pass over, because a certificate under Section 21 must contain "particulars of the order" and will be acted upon by an Accounting Officer disbursing public money. The Decree annexed as ZK-1(a) carries on its face three patent errors. 2. It concludes: "GIVEN under my hand and seal of this Honourable Court at Mombasa this 29th day of 2002." The Judgment was delivered at Eldoret on 29th July 2022. Both the place and the year are wrong, and the month is omitted altogether. 3. The citation appearing in the heading of the Decree names only the 1st Respondent, whereas the Judgment and the operative part of the Decree proceed against "the Respondents," and the certificate now sought is to issue against the 3rd Respondent. A Decree whose title does not name the 3rd Respondent is an unsatisfactory foundation for a certificate directed at that party. 4. The registry endorsement records that the draft was amended on 5th February 2026, which suggests the errors survived that amendment rather than preceding it. 5. These are clerical and accidental slips of precisely the kind contemplated by **Section 99 of the Civil Procedure Act**, which permits clerical or arithmetical mistakes in judgments, decrees or orders, and errors arising therein from any accidental slip or omission, to be corrected at any time by the Court either on its own motion or on the application of a party. Since I am acting on my own motion and no party is prejudiced - the corrections do no more than make the Decree speak the truth of what the Court decided - I shall direct that the Decree be corrected accordingly before the certificates issue. To issue certificates founded on an uncorrected Decree would be to invite an entirely avoidable objection at the point of payment. ## ***(v) Interest and the consequences of the certificate*** 1. Prayer (c) of the Decree awards costs of the Petition together with interest on the decretal sum from the date of the Judgment. By Section 21(3) of the Act, the Accounting Officer is to pay the amount appearing by the certificate to be due together with the interest, if any, lawfully due thereon; and Section 20 of the Act makes provision for interest on debts, damages and costs. It is neither necessary nor appropriate for me to compute interest in this Ruling. It suffices that the certificate should reflect the decretal sum, the taxed costs, and interest as decreed, computed in accordance with the Decree and Section 26 of the Civil Procedure Act. 2. I add, for the guidance of the parties, what the certificate does and does not achieve. It does not itself compel payment. Its issue and service place the Accounting Officer of the 3rd Respondent under the statutory duty imposed by Section 21(3). If, having been served, that Officer fails to pay within a reasonable time, the Petitioner’s remedy is not execution — which Section 21(4) forbids — but proceedings for an order of mandamus to compel performance of the statutory duty. I say nothing about the merits of any such proceedings, which do not arise now. # **D. DISPOSITION** 1. Therefore, drawing the threads together, I find that Section 21 of the Government Proceedings Act applies to the 3rd Respondent by force of Section 21(5); that there exists an order of this Court in favour of the Petitioner against the Respondents; that more than twenty-one days have elapsed from the date of that order and the costs have been taxed and certified, so that the later of the two statutory dates has long passed; that the Petitioner is in consequence entitled to the certificates he seeks; and that the application, though in part addressed to the Court rather than to the Registrar, ought in the circumstances to be determined on its substance rather than defeated on its form. 2. With regard to costs, the application has succeeded and was necessary. It was served and not opposed. Costs ordinarily follow the event under Section 27 of the CPA, and I see no reason to depart from that rule, save to observe that the costs of what is in substance a step in the satisfaction of a decree should be modest and proportionate. # **E. ORDERS** 1. Accordingly, I make the following orders: 2. *That the Notice of Motion dated 18th February 2026 is allowed in the terms following.* 3. *That pursuant to the proviso to Section 21(1) of the Government Proceedings Act, Cap. 40, and Order 29 Rule 3 of the Civil Procedure Rules, 2010, the Court hereby directs that a separate certificate be issued with respect to the costs ordered to be paid to the Petitioner.* 4. *That the Deputy Registrar of this Court shall, upon application in that behalf by the Petitioner, issue in the forms prescribed by Order 29 rule 3 (Forms Nos. 22 and 23 of Appendix A to the Civil Procedure Rules), with such variations as circumstances may require:* 1. *Certificate of Order Against the Government, containing particulars of the Judgment delivered on 29th July 2022 and certifying the decretal sum of Kenya Shillings Two Hundred Thousand (Kshs. 200,000/=) together with interest thereon as decreed; and* 2. *A separate Certificate of Costs certifying the taxed costs of Kenya Shillings Four Hundred and Forty-Three Thousand, Five Hundred and Ninety-Five (Kshs. 443,595/=) as certified by the Certificate of Costs issued on 29th September 2025.* 5. *That before the said certificates issue, the Decree herein shall be corrected under Section 99 of the Civil Procedure Act so as to (i) record that it was given at Eldoret on the 29th day of July 2022, and (ii) reflect in its title all three Respondents as named in the Petition; and the corrected Decree shall be re-issued under the hand and seal of the Deputy Registrar.* 6. *That a copy of each certificate shall be served by the Petitioner upon the Hon. County Attorney of Uasin Gishu County and upon the accounting officer of the 3rd Respondent designated under Section 148 of the Public Finance Management Act, 2012, and an affidavit of such service shall be filed.* 7. *That for the avoidance of doubt, and in accordance with Section 21(4) of the Government Proceedings Act, no execution, attachment or process in the nature thereof shall issue against the 3rd Respondent in enforcement of the Decree herein.* 8. *That the Petitioner shall have the costs of this application, to be taxed if not agreed.* Orders accordingly. **DATED, SIGNED AND DELIVERED AT ELDORET THIS 31ST DAY OF AUGUST 2026.** **……………………………………** **R. NYAKUNDI** **JUDGE**