https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8640

Mercyline & Emurudu (Suing as the Administrators to the Estate of the Late Aquinos Mukholo Emurudu - Deceased) v Ministry of Health & 2 others (Judicial Review Miscellaneous Application E098 of 2025) [2026] KEHC 8640 (KLR) (Judicial Review) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8640 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review Miscellaneous Application E098 of 2025 TW Ouya, J June 18, 2026 Between Momanyi Kemunto Mercyline & Jacob Juma Emurudu Applicant Suing as the Administrators to the Estate of the Late Aquinos Mukholo Emurudu - Deceased and Ministry of Health 1st Respondent Mbagathi Hospital 2nd Respondent The Hon. Attorney General 3rd Respondent Ruling 1.Before Court is a Chamber Summons dated 1st September 2025 brought under Order 53 Rule 1 of the Civil Procedure Rules, Sections 8 and 9 of the Law Reform Act, and Article 47 of the Constitution. The Exparte Applicant seeks for orders:i.Spentii.That the Applicant be granted leave to apply for an order of mandamus to remove into the high court directed to compel the Cabinet Secretary for Finance and County Secretary/Chief Officer. Finance/County Treasurer of the Nairobi County Government to forthwith comply with the terms of the Decree and Certificate of Order against the Government in Milimani Civil Suit No. 7249 of 2019.iii.That the Court be at liberty to make such further and other orders that it may deem to meet the end of justice.iv.That the costs of the Application be provided for. 2.The application is supported by grounds on the face of the record, a Statutory Statement and a Verifying Affidavit sworn by the Applicant all of even date. 3.It is deponed inter alia that pursuant to-the Judgment entered by the Hon. D. W. Mburu on 30th October 2020 in Milimani Civil Case No. 7249 of 2019, the Court ordered the Respondents to pay a sum of Kenya Shillings Four Million Two Hundred and Seventy-One Thousand, Nine Hundred and Fifty-One and eighty cents (Kshs. 4.271, 951.80) plus costs and interest at court rate. 4.It is the Applicant’s case that despite notice the Respondents and their insurer failed to settle the decretal sum necessitating filing of a declaratory suit in Milimani CMCC E11499 of 2021 which suit was determined in favour of the Applicants vide a Ruling and Decree dated 15th June 2022. 5.That consequent to the above, the Respondents lodged an appeal in Milimani High Court HCCA E897 of 2022. The appeal was equally dismissed. 6.The Applicant states that granted the decretal sum has attracted and accrued significant costs and interest and is currently Kenya Shillings Seven Million, Fourteen Thousand One Hundred and Two Thousand and forty-four cents (Ksh. 4.271, 951.80) certificate of costs against the Government was issued and accordingly served upon the Respondents. 7.It is deponed that the Respondents' insurer, Africa Merchant Assurance Company Limited has since partly settled the decretal sum by paying Kenya Shillings Three Million (Kshs. 3.000.000/=) which is the maximum cap limit for insurance claims under Section 5 of the Motor Vehicles Third Party Insurance Act Cap 405, Laws of Kenya. That instructively, there is an outstanding balance of Kshs. 4,014,104 which amount remains due and outstanding from the Respondents. 8.Despite due notice the Respondents have adamantly refused and/or neglected to comply with the Decree and certificate of Order against the Government necessitating the herein application. 9.That due to the foregoing reasons, the Respondents have unreasonably failed to exercise their statutory duties lawfully. 10.The Exparte Applicant prays that the orders sought herein be granted. 11.The Respondent opposed the Application vide Affidavit of its Chief Officer-Finance Asha Abdi, averring that the Application is defective and an abuse of the process of the court. That its insurer, Africa Merchant Assurance Company Limited has since partly settled the decretal sum by paying Kshs. 3,000,000 which is the maximum cap limit for insurance claims under Section 5 of the Motor Vehicles Third Party Insurance Act. 12.The 3rd Respondent is opposed to issuance of the orders sought arguing that Article 207 (2) and (3) of the Constitution of Kenya, 2010 provides for the manner in which Revenue Accounts of the County Government shall be operated through rotational budget every financial year which begins on 1st July of the current calendar year and ends on 30th June of the coming year in line with the Public Finance Management. It is averred that the Nairobi City County is funded through allocation of funds by the County Assembly and the County Government cannot commit funds unless budgeted for and approved by the Nairobi City County Assembly. It was also stated that the County as a public institution dealing with public funds, works on strict budgetary allocation as guided by Section 125, 129, and 131 of the Public Finance Management Act, 2012 among other legislation with regards to county's expenditure. That the Applicants' claim shall therefore be factored in the current financial year's budget and since judgement was entered against all the Respondents jointly, and that part payment of Kshs. 3,000,000/= has already been settled by Africa Merchant Insurance Company Ltd, the County is ready to settle a third of the remaining balance of the decretal sum once the same is allocated for, approved and passed by the County Assembly. 13.The Respondents aver that Section 44 (1) of the County Government Act 2012 establishes the office of the County Secretary whose mandate is to serve as the secretary to the County Executive Committee. 14.It is deponed further that the County Secretary is not designated accounting officer for any entity within the county government and as such has no statutory or administrative authority or means within his respective office to make payment of money owed to the applicants. 15.It is contended that the 3rd Respondent has not consented or connived to commit contempt of Court as it believes in the Rule of law and Integrity of this Court, and committed to obey, respect and preserve court orders. 16.The Court is therefore urged to take Judicial Notice of the fact that the decision to pay involves various stakeholders and the County involves many departments responsible for financial and fiscal matters. It is also urged that it is in the interest of justice that this Honourable Court allows for budgeting allocation and approval of the amounts decreed through the procedures provided for under the County Governments Act. 17.The matter was canvassed by way of written submissions where the parties have reiterated their positions in the pleadings. 18.Having carefully considered the parties pleadings and submissions, I find that the main issue for determination is whether the Applicant has made a case to warrant the reliefs sought. In particular, the court will at this stage determine whether:i.The Applicant has established a prima facie arguable case.ii.The application has been made without undue delay.iii.The matter is fit for further hearing in judicial review 19The applicable law on leave to commence judicial review proceedings is Order 53 Rule 1of the Civil Procedure Rules which provides that no Application for judicial review orders should be made unless leave of the court was sought and granted. 20.The reason for the leave was explained by Waki J (as he then was), in Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 as follows:“The purpose of Application for leave to apply for judicial review is firstly to eliminate at an early stage any Applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the Applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an Application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived…Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the Applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive Application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially.” 21.It is also trite that in an application for leave, the Court ought not to delve deeply into the arguments of the parties, but should make cursory perusal of the evidence before court and make the decision as to whether an Applicant’s case is sufficiently meritorious to justify leave. 22.Before grant of leave, it is crucial to establish that the case is arguable without delving into the merits of the arguments of the parties as held in the case of Republic vs. Land Disputes Tribunal Court Central Division and Another Exparte Nzioka [2006] 1 EA 321 where the court held:“That leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case for granting leave”. 23.A perusal of the pleadings demonstrates that the Applicants obtained a Court decree that is to be enforced through institution of judicial review orders of mandamus. In Republic V Attorney General Exparte James Alfred Koroso JR 44/2012 Odunga J (as he then was in the High Court) added his voice to the question of how a decree against the Government can be settled through execution process and stated:“…in the present case, the Exparte applicant has no other option of realizing the fruits of this judgment since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgment that he has been awarded is realized. Unless something is done he will forever be left babysitting his barren decree. This state of affairs cannot be allowed to prevail under out current constitutional dispensation in light of provisions of Article 48 of the Constitution which enjoins the state to ensure access to justice for all persons. 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 judgments due to road blocks placed on their paths by actions or inactions of public officers. 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. To deny a citizen his or her lawful rights which have been decreed by a court of competent jurisdiction is, in my view, unacceptable in a democratic society.” 24.From the above statutory and judicial pronouncements, which restate the law, it is clear that the only remedy available to such a decree holder as the ex-parte applicant herein against the Government is judicial review remedy of mandamus to compel the Accounting Officer of the relevant Ministry or State Department to settle the material decree. 25.It is expected that judgment debtors settle decrees once judgment is rendered. In this case, the law provides that where there is no payment made, only mandamus can issue to ensure that justice may eventually be served because there is no other remedy available to the decree holder/ applicant. 26.The upshot is that the Applicant’s application for grant of leave to commence judicial proceedings against the Respondents is merited. 27.From the material before Court there is evidence of a statutory obligation imposed upon the Respondent as there are there are correspondences demonstrating demand and non-performance. The claim raises issues of failure to act, which properly fall within the scope of mandamus. An order of mandamus issues to compel performance of a public duty imposed by statute where there is refusal or neglect. Accordingly, I am satisfied that the Applicant has demonstrated a prima facie case deserving further interrogation. 28.In terms of delay, the impugned omission appears ongoing and there is no evidence of inordinate delay demonstrated at this stage. 29.The argument that Leave is intended to operate as a stay is untenable since mandamus generally compels action rather than suspends it. In the present instance, no sufficient basis has been laid for leave to operate as a stay. 30.In light of the foregoing, the Court makes the following orders:i.Leave is hereby granted to the Exparte Applicant to commence judicial review proceedings seeking an order of mandamus.ii.The substantive Notice of Motion shall be filed and served within 14 days.iii.Leave shall not operate as a stay (unless justified otherwise in specific cases).iv.Costs shall be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 18TH DAY OF JUNE, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Adhiambo for ApplicantMs. Kemunto for 2nd RespondentOchieng for Idris for 1st & 3rd RespondentsNyabuto – Court Assistant