https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6855

Muchelule & 5 others v Attorney General & 2 others (Judicial Review Cause E044 of 2026) [2026] KEHC 6855 (KLR) (Judicial Review) (19 May 2026) (Judgment) Neutral citation: [2026] KEHC 6855 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review Cause E044 of 2026 TW Ouya, J May 19, 2026 Between Mr Justice Aggrey Muchelule 1st Applicant Mr Justice Weldon Korir 2nd Applicant Mr Justice Joel Ngugi 3rd Applicant Mr Justice George Odunga 4th Applicant Mr Justice Evans Makori 5th Applicant Amr Justice Judy Omange 6th Applicant and The Honourable Attorney General 1st Respondent The Honourable Solicitor General 2nd Respondent The Principal Secretary, National Treasury 3rd Respondent Judgment 1.This Judicial Review Application is about the execution of a Decree issued on 8th October 2024 and Ruling on costs delivered on 8th April 2025 in Milimani CHRPET No. E311 of 2023 against the Hon. Attorney General, Hon. Solicitor General and the Principal Secretary National Treasury, the Respondents herein by Mr. Justice Aggrey Muchelule & 5 Others, the Applicants herein. 2.The Application is instituted by way of Originating Motion dated 6th February 2026 with grounds and supporting Affidavit of even date sworn by Hon. Mr. Justice Aggrey Muchelule and Supplementary Affidavit sworn on 21st February 2026 by Elisha Zedee Ongoya SC on behalf of the Respondents. The reliefs sought by the Application are that:1.Spent2.Under Article 23 of the Constitution, this Honourable Court be pleased to grant the following judicial review relief:An Order of Mandamus compelling the 1st, 2nd and 3rd Respondents to comply with and satisfy the Decree issued on 8th October 2024 and the Ruling on Costs delivered on 8th April 2025 in Milimani CHRPET No. E311 of 2023 – Hon. Aggrey Muchelule & 5 Others v The Honourable Attorney General & Another, including payment of:i.General damages of Kshs. 15,000,000 to each Applicant;ii.Exemplary damages of Kshs. 5,000,000 to each Applicant;iii.Interest at Court rates from the date of Judgment until payment in full;iv.Taxed costs of Kshs. 4,055,625.3.Costs of this Application. 3.The first ground relied upon by the Applicants is the law. They cite the Constitution of Kenya, 2010 Articles 2(1) and which establishes the supremacy of the Constitution and invalidate acts or omissions inconsistent with it; Article 10 that binds state organs and public officers to uphold the rule of law; Article 21(1) that obligates the state to observe, respect, protect, promote and fulfil rights in the Bill of Rights; Article 23 that empowers this Court to grant appropriate relief, including judicial review orders while Article 47 guarantees the right to administrative action that is lawful, reasonable and procedurally fair. 4.The Applicants also rely on Fair Administrative Actions Act, that Section 2 defines administrative actions to include omissions or failures to act; Section 4 guarantees lawful and reasonable administrative action; Section 7 empowers this Court to review administrative action where an administrator unreasonably delays or fails to act in discharge of a duty imposed by law and; Section 11 empowers this Court to grant orders compelling performance of a public duty. 5.The Applicant’s posit that based on the principle of public duty to satisfy court decrees the 1st Respondent bears responsibility under Article 156 of the Constitution for ensuring compliance with court decrees against the Government. Equally, the 2nd and 3rd Respondents, as accounting officers, bear statutory responsibility for settlement of Government liabilities. Counsel holds that failure to satisfy a valid court decree constitutes unlawful and unreasonable administrative inaction. 6.They also contend that this Application has been necessitated by the unlawful administrative inaction of the Respondents who have failed to discharge a clear constitutional and statutory duty to satisfy a valid court decree and that the Judgment and Decree remain binding and enforceable. Reliance was placed upon Article 47 of the Constitution and section 4 of the Fair Administrative Action Act to argue that the Respondents' failure to act amounts to unreasonable and unlawful administrative action contrary to 7.The Applicants state that this Application is brought in the absence of alternative remedy since execution does not lie against the Government under the Government Proceedings Act and that the Applicants have exhausted all reasonable avenues for settlement. 8.Based on the above grounds, the Applicants contend that they have satisfied the threshold for issuance of order of mandamus in that they have demonstrated existence of a public duty, demand for performance, failure or refusal to perform and absence of an alternative efficacious remedy. They urge the court to find that an Order of Mandamus is therefore necessary to compel compliance with the Decree and uphold the rule of law. 9.The Application is supported by the Affidavit of Hon. Justice Aggrey Muchelule sworn on 6th February 2026 and subsequently, Supplementary Affidavit by Counsel Elisha Zebedee Ongoya sworn on 21st April 2026, both on behalf of the Applicants. It is noteworthy that the latter was filed in response to the Respondent’s Grounds of Opposition. The Affidavits largely reiterate the grounds in support hereof. Of essence, it is deponed inter alia that the Applicants being the decree holders herein, have satisfied the requirements of Section 21 of the Government Proceedings Act having served a copy of the Decree, Certificate of Costs and Certificate of Costs and Order Against the Government issued by the Registrar all relating to Milimani CHRPET E311 of 2023, the subject matter of this Application. 10.The Applicants depone further that service of the essential documents in support of this Application was acknowledged and confirmed in court by State Counsel Munene who appeared in court for the Office of the Attorney General during mention for directions on 20th February 2026. That upon issuance of directions for disposal, Counsel for the Respondent sought for time to obtain instructions and was granted 45 days to do so which lapsed as at the last mention date. Counsel for the Applicants filed annexture EZO-1 being Copies of the documents served upon the Respondents on 24th February 2026 comprising of; Decree, Certificate of costs, and Certificate of Order and Costs against the Government. 11.It was also deponed that the Principal Secretary National Treasury is the Chief Accounting Officer of the National Treasury and is likewise properly joined in this matter since payments due to judges are ordinarily charged upon the consolidated fund where the PS to the Treasury ius the Accounting Officer. 12.In response to the Application, the Respondents filed Grounds of Opposition essentially challenging the Applicant’s Originating Motion for being defective by dint of Section 21 Of the Government Proceedings Act. The Respondents contend they are not accounting officers of the Judgement Debtor and therefore orders sought cannot issue in the circumstances. Adding that there are no legal duties owing against the Respondents to warrant issuance of Order of Mandamus sought, they urge that the Application ought to be struck out with costs. 13.The matter was canvassed by way of written submissions by the rival parties through their Counsel. 14.Senior Counsel Ongoya for the Applicants vide written submissions dated 21st April 2026 focussed on one issue for determination being: whether the Applicants have met the threshold for grant of an order of Mandamus compelling the Respondents to satisfy the Judgement and Decree in Milimani CHRPET No. E311 of 2023. 15.Counsel gave a background to this Originating Motion which seeks an Order of Mandamus compelling the Respondents to comply with and satisfy the Judgement and Decree issued on 8th October 2024 and the Ruling on costs delivered on 8th April 2025 in Milimani CHRPET No. E311 of 2023 – Hon. Aggrey Muchelule & 5 Others v. The Honourable Attorney General & Another. 16.That the said Judgment which awarded each Applicant general damages of Kshs. 15,000,000, exemplary damages of Kshs. 5,000,000, and taxed costs of Kshs. 4,055,625, together with interest remains valid, binding and wholly unsatisfied, despite formal demand for payment and service upon the Respondents. That the failure and/or refusal to satisfy the Decree amounts to unlawful administrative inaction contrary to Article 47 of the Constitution and the Fair Administrative Action Act, thereby necessitating the intervention of this Honourable Court by way of an Order of Mandamus. 17.Counsel cited the Applicable law relied upon in these proceedings including Article 47(1) of the Constitution of Kenya, which guarantees the right to administrative action that is lawful, reasonable, and procedurally fair, while Article 47(2) requires written reasons for any adverse administrative action or inaction; section 2 of the Fair Administrative Actions Act which defines administrative action to include:“any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates…”; Section 4(1) of the Fair Administrative Actions Act which guarantees to every person the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. And; Section 11(1)(f) of the Fair Administrative Actions Act which authorizes the court to issue orders compelling the performance, as follows:“…1) In proceedings for judicial review under section 8 (1), the court may grant any order that is just and equitable, including an order... (f) compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right” 18.Counsel relied on the principle of public duty derived from the Government Proceedings Act, Section 21(3) which imposes a duty on the accounting officer of the Government department concerned to pay the decretal sum once a certificate of order against the Government has been served in the following terms:“…If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon.” 19.Further reliance was placed on several judicial precedents to show that Courts have consistently affirmed that mandamus is the appropriate remedy to compel satisfaction of a lawful decree against the Government namely: Republic v Permanent Secretary, Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR ; Republic v Attorney General & another ex-parte Charles M. Tamba [2016] KEHC 6363 (KLR) the court cited with authority Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR and: Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR. 20.The essence of the above authorities is that an order of mandamus is necessary to compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. Without an order of mandamus, a decree holder has no option of ensuring that the judgement that he has been awarded is realized and that unless something is done, he will forever be left “baby-sitting his barren decree.” 21.Counsel identifies only one issue for determination: whether the Applicants have met the legal threshold for the grant of an Order of Mandamus compelling the Respondents to satisfy the Judgment and Decree in Milimani CHRPET No. E311 of 2023. 22.Counsel submits that the Respondents, as defined by law and the Constitution, bear a statutory and constitutional responsibility to satisfy all lawful decrees and orders against the Government. The 1st Respondent, under Article 156(4), is the principal legal adviser to the Government and custodian of legal compliance. This provision provides thus, “…the Attorney-General--(a)is the principal legal adviser to the Government” 23.The 2nd Respondent, as Solicitor General, is the accounting officer in the Office of the Attorney General. This position was also affirmed in Peter Anyang Nyongo &10 Others v Solicitor General 2011KEHC4293(KLR) where the court held thus,“…Being a constitutional representative and being the principal legal advisor to the three arms of the Government, he is required to direct any arm of Government he represented to pay the costs of any suit which he acted on its behalf. Clearly, it is the duty and the function of the Attorney General to advise his client and if a particular organ refuse to pay he will be responsible on behalf of his agent. In that regard, the Solicitor General being the accounting officer of the Attorney General was rightly sued by applicants. In my mind the applicants clearly and correctly sued the Solicitor General and are entitled to the orders sought…” 24.The 3rd Respondent, the Principal Secretary, National Treasury, is the chief accounting officer and administrator of the National Treasury where the Consolidated Fund of the Republic of Kenya is managed and from which the funds for settlement of decrees, including the one in issue would ordinarily be drawn. The provision of the law granting the 3rd respondent these powers are section 67 of the Public Finance Management Act as read with Section 12 of the National Government Coordination Act which provide thus;“67.Designation of accounting officers for national government(2)Except as otherwise stated in other legislation, the person responsible for the administration of a Constitutional Commission or institution or Independent Office shall be the accounting officer responsible for managing the finances of that Commission, institution or Independent Office.National Government Co-ordination Act (Cap. 127) Laws of Kenya.12.Principal Secretaries(1)Pursuant to Article 155(2) of the Constitution, each Principal Secretary shall be responsible for the administration of a State department…” 25.Counsel argues that under Section 21(3) of the Government Proceedings Act, the accounting officer must settle decretal sums reflected in a duly issued certificate of order against the Government. That since the Applicants have furnished such certificates and proof of service in the Applicant’s supplementary Affidavit. The Respondents are therefore under a clear, non-discretionary duty to act. Their failure to pay constitutes unlawful omission. 26.It is Counsel’s submission that the Applicants have met all procedural preconditions to satisfy the threshold for issuance of Order of Mandamus namely: a valid Judgment and Decree dated 8th October 2024, a Taxation Ruling dated 8 April 2025, Obtained and served Certificates of Order and Costs against the Government on 23 February 2026 and lastly, served the Respondents with all documents and a Notice of Intention to Sue dated 15 December 2025. 27.Counsel submits further that this Court has already confirmed in prior proceedings, in the mention before Hon. Justice Chigiti, on 27th February 2026, that the Respondent acknowledged receipt of the requisite instruments. Hence, Section 21 of the Government Proceedings Act has been duly satisfied. They contend that despite compliance with the above, the Respondents have neglected or refused to act contrary to the law provisions cited above. 28.They argue that the Respondents’ indolence undermines the rule of law and the authority of the judiciary, contrary to Article 10 and Article 159(1) on judicial authority. To underscore the above principle, reliance was placed Republic v Permanent Secretary, Ministry of State for Provincial Administration & Internal Security Exparte Fredrick Manoah Egunza (supra), where the court held that mandamus is the only remedy that a party has against government in instances of unsettled decrees, such as this one. 29.In conclusion, Counsel submits that the Applicants have met all the above criteria and the Respondents’ failure to act is unjustified, unconstitutional, and contrary to their statutory obligations. Consequently, this Honourable Court’s intervention is both necessary and just in view of the Respondents’ compliance. Court is therefore urged to find that the only viable remedy is therefore an Order of Mandamus compelling the Respondents, jointly and severally, to satisfy the decree and costs in Milimani CHRPET No. E311 of 2023, together with accrued interest and to issue the orders as prayed with costs to the Applicants. 30.The Respondents through their Counsel in further opposition of the said application filed submissions raising three issues for determination:i.Whether the execution was according to the Government Proceedings Act.ii.Whether the Respondents are under a public duty and obligation to satisfy the orders issuediii.Who should bear the cost of the application 31.Counsel submitted that the instant proceedings should be struck out for non-compliance with the Government Proceedings Act. Counsel placed reliance on Sections 21(3) and the case of In Republic v Attorney General Ex-partes Miriam Wairimu Wambugu & another [2021] eKLR all emphasizing the need for taking out and serving upon the accounting officer of a government entity, “a certificate of order and costs against Government as a condition precedent before bringing up, an Application for an order of Mandamus. 32.The basis for the argument above was that the Applicants had not extracted and served upon the Respondents “a certificate of order and costs against Government”. Notably, this issue was responded to through the Applicant’s Further Affidavit where the certificate of order and costs against Government and evidence of service thereof are annexed. 33.The next issue discussed by the Respondents’ Counsel was whether the Respondents are under a public duty and obligation to satisfy the orders issued. Counsel submitted that the Respondents are not the accounting officers of the Decree Debtor thus orders sought cannot issue. Reliance was placed upon Section 21 (3) of the Government Proceedings Act provides as follows;“If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.” 34.Counsel submitted that an Accounting Officer is provided for under Sections 2 and 67(2) of the Public Finance Management Act defining who an accounting officer is with regards to the national institution or government entity. It provides that;“Except as otherwise stated in other legislation, the person responsible for the administration of a Constitutional Commission or institution or Independent Office shall be the accounting officer responsible for managing the finances of that Commission, institution or Independent Office.’’ 35.Counsel also cited Republic v Attorney General Ex-parte Mirriam Wambugu & Another (2021) eKLR where it was held by Judge Nyamweya that, Execution proceedings against a government or public authority under the Government Proceedings Act can only be as against the accounting officer or chief officer of the said government or authority, who is under a statutory duty to satisfy a judgment made by the Court against that body. 36.Counsel argued that the Government Proceedings Act provides that once a certificate of order against the Government is issued a copy of the same may be served by the person in whose favor the order is made and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon. 37.It was therefore submitted that, the orders sought against the Respondents are improper and thus makes the application defective and the same should be dismissed. 38.It is the Respondents’ submission that the Attorney General and the Solicitor General acting in her capacity as Legal Advisor and counsel for Government is not liable to pay the decretal sums. Counsel cited Article 156(4) of the Constitution of Kenya, 2010 which provides that:“The Attorney-General—i.is the principal legal adviser to the Government;ii.shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; andiii.shall perform any other functions conferred on the office by an Act of Parliament or by the President.” 39.Counsel contended that the Attorney General acts as the legal representative but is not the party against whom execution should be done in the event that a party is successful in prosecuting or defending their suit. As such, it was argued that the Applicant cannot execute against the Attorney-General and/or the Solicitor General. Counsel also argued that the 3rd Respondent, the Principal Secretary National Treasury, was not a party in the Petition and thus the applicants cannot execute against it now. 40.The Respondents contend that for an order of mandamus to issue there must be a specific legal duty owing which is not the case in the circumstances thus the application must fail. 41.Reliance was placed in the case of Republic v Attorney General & another Exparte Orbit Chemicals Limited [2017] eKLR it was held that:“ 22.The question is who is then under a legal obligation to satisfy such a judgement after the same has been given? Section 21(1) of the Government Proceedings Act provides: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 order:Provided 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.Section 21 (3) of the said Act on the other hand provides:If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.” 24.The effect of these provisions is that whereas execution proceedings as are known to law are not available against the Government, the accounting officer for the Government department concerned is nevertheless under a statutory duty to satisfy a judgement made by the Court against that department.It is therefore clear that in applications for mandamus seeking to compel the satisfaction of a decree, it is the accounting officer of the relevant government department that is obliged to satisfy the decree notwithstanding the fact that the said officer was not a party to the trial proceedings and that in fact the only defendant therein was the Attorney General. Therefore whereas I agree with the position in Peter Anyang’ Nyongo & 10 Others vs. Solicitor General [2011] eKLR, that it is for the Attorney General to advise his clients to pay the costs which attracted his representation on behalf of the said client and that being a constitutional representative and being the principal legal advisor to the three arms of the Government, he is required to direct any arm of Government he represented to pay the costs of any suit which he acted on its behalf; I however do not subscribe to the view that if any costs or liability accrues from his representation, he is obliged to pay the same and that if a particular organ refuses to pay he will be responsible on behalf of his agent…..53. I therefore associate myself with the views expressed by Githua, J in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza (supra) that 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…..” 42.The third issue raised by the Respondent was: Who should bear the Cost of the Application. Counsel relied on the case of Party of Independent Candidate of Kenya vs Mutula Kilonzo & 2 Others submitting that the underlying principle for awarding of costs is discretional and should be exercised reasonably and secondly; is the general rule that costs should be awarded to the successful party. Counsel urged that in the event this Honourable Court is inclined to uphold the ex-parte applicant’s prayers, then the Respondents should not be condemned to pay costs. Analysis and Determination; 43.Having carefully considered the Application before the court, the pleadings and rival parties’ arguments, I have isolated issues for determination to be: whether the Application for Order of mandamus is merited and whether the Respondents are rightly joined herein. 44.The legal basis for duty imposed upon accounting officers is drawn from Government Proceedings Act Section 21(1) and (3) which provide for satisfaction of orders against the Government as follows:“(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 order:Provided 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.”(3)If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:“Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.” 45.From the above statutory provision, a party wishing to realize the fruits of a judgment or decree against the government or government entity must obtain a certificate of order against the government or that entity. The government or government entities pay against the certificate of order issued against them. A certificate of order against the government is such an essential accounting instrument for the purpose of government and or public finances and accounts. 46.In the case Permanent Secretary Office of the President Ministry of Internal Security & Another Exparte Nassir Mwadhihi (2014) eKLR, the court stated as follows, on the centrality of the certificate of order against the government:“ 33.… the rules applicable to normal execution proceedings by way of committal to civil jail are not necessarily applicable to enforcement of an order of the Court arising from an order of mandamus by way of committal. 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 respect to issuance of certificate of costs and certificate of order against the Government … 34.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...”. 47.In Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR, the court stated:“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.” 48.It is settled law that the statutory duty on the part of government to settle a judgment or decree of a court arises only after the government has been served with the certificate of order against it. Without being served with the said certificate, government does not incur the duty to pay or satisfy the judgment or decree, and, as a consequence, a mandamus order would not be available, since mandamus is meant to compel performance of a statutory or legal duty. That is the purport and effect of section 21(3)(4) of the Government Proceedings Act. 49.The first ground raised by the Respondents in opposition to this Application was that the Applicants have not met the threshold for granting of the Order of mandamus by virtue of failure to take out and serve the Respondent with the Certificate of Order and Costs against the Government in accordance with Section 21(3) of the Government Proceedings Act. This court takes note that the issue was since addressed by the Applicant’s Supplementary Affidavit sworn on 21st February 2026 by Counsel Elisha Ongoya which included inter alia evidence of service of a copy of the Decree issued on 8th October 2024, Certificate of Costs issued on 4th June 2025 and Certificate of Costs and Order Against the Government issued by the Registrar on 23rd February 2026 all relating to Milimani CHRPET E311 of 2023, the subject matter of this Application. 50.Evidence of such service was via email correspondence on 20th and 24th February 2026 between Counsel for the Applicants and Counsel for the Respondents communicating court directions on 20th February 2026 and forwarding the subject documents upon request. 51.I am therefore satisfied that the subject documents were duly served upon the Respondents and by that, the Applicants satisfied the requirements of section 21(3) of the Government Proceedings Act. Thus, the submission by the Respondents that application should be dismissed as the orders sought are defective and improper cannot stand. On the contrary, I find this Application competent before this court with regard to the reliefs sought. 52.The second issue is the duty imposed by the law upon the accounting officers of government agencies to satisfy court orders and decrees. In addressing this issue, the court will concurrently deal with the issue as to whether the orders of mandamus are merited as prayed. Counsel for the Applicants contended that by dint of Section 21(3) of the Government Proceedings Act, the accounting officer must settle decretal sums reflected in a duly issued certificate of order against the Government. That since the Applicants have furnished such certificates and proof of service in the Applicant’s supplementary Affidavit, the Respondents are therefore under a clear, non-discretionary duty to act. Their failure to pay therefore, constitutes an unlawful omission. 53.As to whether the Applicants have met the threshold for granting of the orders sought, is now apparent as the finding herein above, that the Respondents through their participation in the present proceedings and by direct service are in receipt of the essential instruments which constitute the conditions precedent for an application for order of mandamus to issue. I will not belabor that any further save to mention that upon an applicant’s compliance, the only reasonable expectation is for the Decree debtor to settle the decretal sum. In the instant circumstances, it is apparent that the debt has not been satisfied hence the present Application. 54.In the case of Republic v Kenya National Examinations Council Ex Parte Gathenji & 8 Others Civil Appeal No. 234 of 1996, the Court of Appeal cited with approval, Halsbury’s Law of England, 4th Edition. Vol. 7 p. 111 para 89 thus concerning the order of mandamus and when it issues:“The order of mandamus is of most extensive remedial nature and is in form, of 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 ineffectual.". ..These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.” 55.It has been demonstrated by the Applicants that the respondents were made aware of the subject judgement, Decree, Certificate of costs and Certificate of Order and Costs against the Government at the onset of these proceedings in February 2026. This court takes judicial notice that the judgment herein was delivered on 9th October 2025 while decree was issued 19th December 2024. Based on my analysis above I am persuaded that the above authority speaks to the facts herein to the effect that the duty upon the government department arose upon service of the subject instruments. As such, an order for mandamus is the only suitable remedy for the Applicants. This is in line with the finding by Githua J in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza (Citation) that 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. 56.The Respondents on the other hand have raised a pertinent issue that they are not the Decree Debtor thus orders sought cannot issue. They argue that the Attorney General and Solicitor General acting in their capacity as Legal Advisor and Counsel for Government is not liable to pay the decretal sums. Counsel cited Article 156(4) of the Constitution of Kenya, 2010 and section 21(3) of the Government Proceedings Act to emphasize that the duty is upon the accounting officer for the Government department concerned. 57.The locus classicus case of Republic v Attorney General & another Exparte Orbit Chemicals Limited [2017] eKLR which was relied upon by the respondents speaks well to this issue as it was held inter alia that:“…The effect of these provisions is that whereas execution proceedings as are known to law are not available against the Government, the accounting officer for the Government department concerned is nevertheless under a statutory duty to satisfy a judgement made by the Court against that department.It is therefore clear that in applications for mandamus seeking to compel the satisfaction of a decree, it is the accounting officer of the relevant government department that is obliged to satisfy the decree notwithstanding the fact that the said officer was not a party to the trial proceedings and that in fact the only defendant therein was the Attorney General. Therefore whereas I agree with the position in Peter Anyang’ Nyongo & 10 Others vs. Solicitor General [2011] eKLR, that it is for the Attorney General to advise his clients to pay the costs which attracted his representation on behalf of the said client and that being a constitutional representative and being the principal legal advisor to the three arms of the Government, he is required to direct any arm of Government he represented to pay the costs of any suit which he acted on its behalf; I however do not subscribe to the view that if any costs or liability accrues from his representation, he is obliged to pay the same and that if a particular organ refuses to pay he will be responsible on behalf of his agent…..” 58.Further to the above authority, the case of Republic v Attorney General & another Ex-parte James Alfred Koroso [2013] eKLR where Odunga J with approval cited Shah vs Attorney General (No.3) Kampala HCMC No. 31 of 1969 [1970] EA 543 where Goudie, J expressed himself, inter alia, as follows:“Mandamus is a prerogative order issued in certain cases to compel the performance of a duty…… Thus, it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the bene t of an individual. Mandamus is neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy….With regard to the question whether mandamus will lie, that case falls within the class of cases when officials have a public duty to perform, and having refused to perform it, mandamus will lie on the application of a person interested to compel them to do so……What the Applicant is seeking is not relief against the Government but to compel a government official to do what the Government, through Parliament, has directed him to do.” 59.Based on the above guidance, I am well fortified in my view that whereas the Attorney General and Solicitor General were all along enjoined in these proceedings as 1st and 2nd Respondents respectively, the former was enjoined as enjoined only as a constitutional representative and being the principal legal advisor to the three arms of the Government, he is required to direct any arm of Government he represented to pay the costs of any suit which he acted on its behalf. The latter however is in my view, is enjoined as the accounting officer in the Attorney General’s office. Whereas the Attorney General appeared consistently in this matter from the primary suit to the instant motion, he is not the accounting officer for the Department for which the order of mandamus should issue. However, it is incumbent upon him to inform and advise the accounting of of the Department/Ministry he represents in this matter, the client. 60.Having said that, I note that Counsel for the Applicants submitted that the 3rd Respondent herein, the Principal Secretary, National Treasury, is the chief accounting officer and administrator of the National Treasury where the Consolidated Fund of the Republic of Kenya is managed and from which the funds for settlement of decrees, including the one in issue would ordinarily be drawn. This is in line with the provision of section 67 of the Public Finance Management Act as read with Section 12 of the National Government Coordination Act which provide thus;“... 67. Designation of accounting officers for national government(2)Except as otherwise stated in other legislation, the person responsible for the administration of a Constitutional Commission or institution or Independent Office shall be the accounting officer responsible for managing the finances of that Commission, institution or Independent Office. 61.Finally, I find that there is more than sufficient evidence on record that the applicant served the certificate of order and costs against the government and that this motion and the orders sought meet the threshold of section 21 of the Government Proceedings Act and section 67 of the Public Finance Management Act as read with Section 12 of the National Government Coordination Act. There is no contrary evidence including that of any appeal against the subject Decree and Certificate. For the above reasons I find that the prayer for order of mandamus as sought for in this motion and I proceed to issue the same against the 3rd Respondent as prayed. 63.Final Orders:1.Originating Motion dated 6th February 2026 is allowed with costs to the Applicants.2.Decree for Order of Mandamus to issue compelling the 3rd Respondents herein to settle the Decree and Certificate of Order and Costs against the Government dated 23rd February 2026 in Milimani CHRPET No. E311 of 2023. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MAY, 2026HON. T. W. OUYA, OGWJUDGEIn the presence of:Idris Ali for Mr. Munene for RespondentHamza/Kevin – Court Assistants