https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11336

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **MISC. JUDICIAL REVIEW APPLICATION NO. E013 OF 2025** **IN THE MATTER OF AN APPLICATION BY MOSES AOL KICHE** **AND** **IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY WAY OF MANDAMUS** **AND** **IN THE MATTER OF SECTIONS 2, 103, 147 & 148 OF THE PUBLIC FINANCE MANAGEMENT ACT, 2012** **AND** **IN THE MATTER OF SECTION 44 & 45 OF THE COUNTY GOVERNMENTS ACT, 2012** **AND** **IN THE MATTER OF GOVERNMENT PROCEEDINGS ACT, CHAPTER 40, LAWS OF KENYA** **AND** **IN THE MATTER OF ARTICLES 10, 23 & 41 OF THE CONSTITUTION OF KENYA** **BETWEEN** **MOSES AOL KICHE ....................................... EX PARTE APPLICANT** **=VERSUS=** **THE COUNTY SECRETARY,** **COUNTY GOVERNMENT OF KERICHO .................. 1ST RESPONDENT** **THE COUNTY EXECUTIVE MEMBER/OFFICER FOR FINANCE,** **COUNTY GOVERNMENT OF KERICHO .................. 2ND RESPONDENT** **RULING** 1. The Applicant moved Court by way of Chamber Summons dated 3rd day of December 2025 brought under the provisions of Order 53 Rule 1 (1) (2) and (3) of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. He prayed for the following orders: 1. That leave be granted to the Applicant to apply for an Order Judicial Review by way of Mandamus, directed to the 1st and 2nd Respondents herein respectively, to pay to the Applicant the sum of Kshs. 1,468,848.80/= together with accruing interest at court rates of 14% per annum from 4th July, 2025 being in satisfaction of the decree and certified costs in Eldoret CMCC E238 OF 2022 Moses Aol Kiche -versus- County Government of Kericho. 2. That costs of this Application be borne by the 1st and 2nd Respondents herein. 3. The application is based on the following grounds and the annexed affidavit of Moses Aol Kiche and on the following grounds, inter alia: 4. That judgement was entered on 4th July, 2025 for the Applicant against the Ministry of Health County Government of Kericho vide Eldoret CMCC E238 OF 2022 Moses Aol Kiche -versus- County Government of Kericho, in the sum of Kshs. Kshs. 1,468,848.80/= together with accruing interest at court rates of 14% per annum running from the date of judgment till payment in full. 5. That The Applicant has served the Respondent with a Certificate of Order against the County Government issued on the 2nd October, 2025 together with the decree issued on the 2nd October, 2025. 6. That despite a due reminder by way of demand, the County Government of Kericho has completely failed to settle the sum herein. 7. That no explanation or justification has been given by the Respondents, as the Principal Officers, under an obligation to settle such debts owing from the County Government of Kericho, for their continued reluctance to make this payment and the Applicant is now desperate and apprehensive that the Respondents have no intention at all to make this payment in fulfilment of a valid standing judgment in a decree and Certificate of Costs to date. 8. There was no response to the application. 9. I have considered the Chamber Summons dated 3rd December 2025, the Statutory Statement, the Verifying Affidavit together with the annextures thereto. The application is unopposed. 10. The application before Court is one for leave to commence judicial review proceedings seeking an order of mandamus to compel the Respondents, being the County Secretary and the County Executive Committee Member in charge of Finance of the County Government of Kericho, to satisfy a decree issued in **Eldoret CMCC No. E238 of 2022, Moses Aol Kiche –vs– County Government of Kericho**. 11. The jurisdiction of this Court at this stage is limited. The Court is not called upon to determine the merits of the intended judicial review application but only whether the Applicant has established an arguable case deserving leave. Leave under Order 53 Rule 1 of the Civil Procedure Rules serves the important purpose of filtering out frivolous, vexatious or hopeless claims while allowing arguable applications to proceed to substantive hearing. 12. In ***Matiba v Attorney General* [1995-1998] 1 EA 192**, the Court observed that the requirement for leave is intended to eliminate at an early stage applications that are frivolous, vexatious or an abuse of the court process. Similarly, in ***Sharma v Brown-Antoine* [2007] 1 WLR 780 (PC)**, the Privy Council held that the test at the leave stage is whether the applicant has demonstrated an arguable case with a realistic prospect of success. 13. From the material placed before Court, the Applicant has exhibited a Judgment delivered on 4th July 2025, a Decree, a Certificate of Order against the County Government and evidence of service upon the Respondents. It is also deponed that despite demand and service of the requisite statutory documents, the decretal amount remains unpaid. 14. Under **Section 21 of the Government Proceedings Act**, once a Certificate of Order has been issued and served upon the accounting officer of a Government entity, the accounting officer is under a statutory duty to satisfy the decree from funds lawfully available. Although execution proceedings cannot issue against Government property, the successful litigant is not left without a remedy. The remedy available is an order of mandamus compelling the responsible public officer to perform the statutory duty imposed by law. 15. The legal position is now well settled. In ***Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza* [2012] eKLR**, Githua J. stated: *"Where a judgment has been entered against the Government and a Certificate of Order against the Government has been issued and served, the accounting officer concerned is under a statutory obligation to satisfy the decree. Where he fails to do so, the remedy available to the successful litigant is an order of mandamus."* 1. The same principle was emphasized by the Court of Appeal in ***Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & Others* [1997] eKLR**, where the Court explained the nature and scope of the order of mandamus as follows: *"The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court 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."* 1. County Governments are equally bound by decrees lawfully issued against them. In ***Republic v County Secretary, Nairobi City County & Another ex parte Wachira Nderitu Ngugi & Co. Advocates* [2016] eKLR**, the Court held that once a decree and Certificate of Order against a County Government have been served, the County Secretary and the County Executive Committee Member responsible for Finance bear the statutory responsibility of ensuring settlement of the decree and may properly be compelled by an order of mandamus. 2. Likewise, in ***Republic v Attorney General & Another ex parte James Alfred Koroso* [2013] eKLR**, the Court observed that the purpose of judicial review by way of mandamus is to ensure that successful litigants are not left with barren judgments merely because execution against Government is prohibited by law. 3. Having considered the material placed before Court, I am satisfied that the Applicant has demonstrated a prima facie arguable case. The Applicant has exhibited a valid judgment, decree and Certificate of Order against the County Government and has demonstrated that despite service and demand, payment has not been forthcoming. Whether the Respondents have any lawful justification for the non-payment is a matter to be canvassed at the substantive hearing. 4. The intended application is neither frivolous nor vexatious. It raises serious issues regarding the enforcement of a statutory duty imposed upon public officers under the Government Proceedings Act, the Public Finance Management Act and the County Governments Act. 5. Consequently, I find merit in the Chamber Summons dated 3rd December 2025. **Orders** 1. Accordingly, the Court makes the following orders: 2. Leave is hereby granted to the Applicant to institute judicial review proceedings for an order of **Mandamus** directed at the County Secretary, County Government of Kericho, and the County Executive Committee Member in charge of Finance, County Government of Kericho, compelling them to satisfy the decree, Certificate of Order against the County Government and taxed costs issued in **Eldoret CMCC No. E238 of 2022, Moses Aol Kiche –vs– County Government of Kericho**, together with the applicable interest thereon. 3. The substantive Notice of Motion shall be filed and served within **twenty-one (21) days** from the date hereof. 4. The Respondents shall be at liberty to file and serve their responses within **fourteen (14) days** of service. 5. The Applicant shall have **seven (7) days** thereafter to file any supplementary affidavit or written submissions, if necessary. 6. Costs of this Chamber Summons shall abide the outcome of the substantive Notice of Motion. It is so ordered. **DATED SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF JULY 2026** **A.K. NDUNG’U** **JUDGE**