https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10578

JM Njenga & Company Advocates Llp v Chief Officer for Finance, Nairobi City County (Judicial Review E076 of 2026) [2026] KEHC 10578 (KLR) (Judicial Review) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10578 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E076 of 2026 WM Musyoka, J July 10, 2026 Between JM Njenga & Company Advocates Llp Applicant and Chief Officer for Finance, Nairobi City County Respondent Judgment 1.The substantive Motion is dated 12th March 2026, and it is for a mandamus order, directed at the respondent, to compel satisfaction of a decree, passed in Milimani HCCOMM No. E391 of 2022, together with costs and interests. According to the facts, set out on the face of the Motion, and in the supporting affidavit, sworn by Mr. Jeremy Njenga, on 12th March 2026, the decree is for a sum of Kshs. 100,533,222.23. It is alleged that a decree, a certificate of taxation and a certificate of order against the Government were processed, and served on the respondent. It is contended that that decree and certificate stand unsettled to date, hence the filing of the application. 2.Several documents are exhibited, in the affidavit, in support of the quest. These are a ruling, delivered in Milimani HCCOMM No. E391 of 2022, dated 19th December 2024, entering judgement for the applicant, against the respondent; a certificate of taxation, in Milimani HCCOMM No. E391 of 2022, dated 14th July 2025; a certificate of order and costs against the Government, dated 17th July 2025; and a demand for payment, dated 17th July 2025. 3.The respondent reacted to the motion, by filing an affidavit, sworn on 16th April 2026, by the respondent, Ms. Asha Abdi. The application is opposed. Article 207(2)(3) of the Constitution and sections 125, 129 and 131 of the Public Finance Management Act, Cap. 412A, Laws of Kenya, are cited, on how revenue accounts of the State are operated and public funds are subject to strict budgetary allocation. It is stated that the claim by the applicant would be factored in the next financial budget for the Nairobi City County Government. 4.Directions were taken, on 20th April 2026, for canvassing of the application, by way of written submissions. Both sides have filed written submissions. 5.The first in time, to file written submissions, is the respondent, which are dated 28th May 2026. Her submissions are aligned to the averments made in her affidavit, about management of public funds, and how such funds are subject to the budgeting process. She has cited Republic vs. County Government of Nairobi; KCB Bank Limited (Ex parte) [2023] KEHC 22611 (KLR). 6.The written submissions, by the applicant, followed. The said written submissions are dated 12th June 2026, and essentially respond to those filed by the respondent, arguing that the decision cited, Republic vs. County Government of Nairobi; KCB Bank Limited (Ex parte) [2023] KEHC 22611 (KLR), is not aligned to the written submissions that it is meant to support, for the application for mandamus was allowed, with the court citing Republic vs. Machakos County Government; Mwangangi & Co. Advocates (Ex parte) and Republic vs. Town Clerk of Webuye County Council & another HCCC 448 of 2006, where it was stated that a decree-holder was entitled to the fruits of its judgement. 7.The processes, for levying execution of court decrees and orders, as set out in the Civil Procedure Act, Cap. 21, Laws of Kenya, and the Civil Procedure Rules, are not available against the Government. The rationale for that position was stated in Kisya Investments Ltd vs. Attorney General & another [2005] eKLR [2005] KEHC 3226 (KLR). Proceedings against the Government are governed by the Government Proceedings Act, Cap. 40, Laws of Kenya, in terms of how to initiate them, and what to do after a decree is obtained. The requirement is that, upon a decree or order being obtained against the Government, the party, desiring to have it satisfied or complied with, ought to obtain, from the court, a certificate of order against the Government, which should then be served. 8.The law, on satisfaction of orders and decrees against the Government, is section 21 of the Government Proceedings Act. Section 21(1) requires extraction of the certificate of order against the Government from the court record. Section 21(2) requires service of that certificate on the Attorney General or the County Attorney, whichever is applicable. Section 21(3) directs the Accounting Officer, for the Government department concerned, to pay, to the person entitled or to his Advocate, the amount appearing by that certificate. Section 21(4) declares that no execution or attachment, or any other process of that kind, should be issued by the court, for enforcement of payment by the Government of any money or costs decreed or ordered by a court against it. See Republic vs. Permanent Secretary, Office of the President Ministry of Internal Security & another Ex-Parte Nassir Mwandihi [2014] eKLR [2014] KEHC 6027 (KLR). 9.The accounting instrument, for the purpose of Government operations, which unlocks payment of funds from the Government, in satisfaction of a court order or decree, is the certificate of order against the Government. This document is critical. Without it, the process of payment cannot be unlocked. Any person, desiring to be paid by Government, on account of a decree or order against it, must first obtain the said certificate. That certificate must then be served on the Attorney General; in case the decree or order is against the National Government; or the County Attorney, where the order or decree is against a County Government. The Government should only be expected to settle or satisfy the decree upon being notified of the same, through that certificate being appropriately served, in accordance with the law. See Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR and Five-Star Agencies Ltd & another vs. National Land Commission & 2 others [2024] KECA 439 (KLR). 10.The Mandamus order is available where a statutory or public duty exists, and it issues to enforce that duty. See Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic [1997] eKLR [1997] KECA 58 (KLR). The duty, on the part of the Government, with respect to court orders and decrees, to pay or settle a court decree or order, accrues, not upon the order or decree being passed, but upon the accounting document, known as certificate of order against the Government, being served on the relevant Government official. The mandamus order can only be obtained on the strength of service of the said certificate, for it is upon that service that the duty to act accrues. 11.The question, in this case, then, is, whether the duty to pay or settle the decree herein has arisen. The answer to that question would depend on whether a certificate of order against the Government was obtained, and if it was, whether it was served on the relevant Government official. 12.The applicant has attached, to the affidavit filed herein in support of the motion, a letter, dated 17th July 2025, written to the respondent, which forwarded a copy of a certificate of order and costs against the government. The letter has 2 date stamps embossed on its face. One of the stamps indicates that the letter was received at the Office of the Chief Officer Finance of the Nairobi City County, the respondent herein, on 22nd July 2025. The other date stamp is so vague or blurry that I am unable to make out its contents. 13.The material above is adequate proof that the certificate of order against the government was, indeed, properly served on the respondent, who is the appropriate accounting officer, for the purposes of section 21 of the Government Proceedings Act. 14.The mandamus order issues to enforce the duty to pay, where that duty has accrued. The failure to serve that certificate is fatal, and evidence of service would lead to grant of the mandamus order. See Evans James Misati vs. County Secretary, Chief Officer Ministry of Health County Government of Vihiga; Ex Parte: Evans James Misati [2021] KEHC 13532 (KLR) and Republic vs. Principal Secretary, Ministry of Interior and Coordination of National Government & another; Wang'ombe (Ex parte) [2024] KEHC 4336 (KLR). The certificate of order against the Government has, in this case, been served, hence the duty to pay has accrued. The mandamus order is available in this case, in the circumstances. It can, as a consequence, issue. 15.The respondent filed an affidavit in reply. However, the issues raised, in that affidavit, are irrelevant, to the extent that they cannot provide basis for the court declining to grant the order of mandamus. It was stated, in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR, that the matters of budgetary allocation challenges and parliamentary approval, and the like, cannot be a condition for grant of the mandamus order, once the duty or liability to pay accrues, following proper service of the certificate of order against the government. 16.In the end, I hereby find that the application, by way of Motion, dated 12th March 2026, is merited, and I hereby allow it, with costs. Orders accordingly. DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 10TH DAY OF JULY 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.AdvocatesMr. Njenga, instructed by JM Njenga & Company, Advocates for the applicant.Ms. Nyamora, instructed by the Office of the Nairobi City County Attorney, for the respondent.