https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4078

Mwatela & another v Chief Finance Officer County Government of Mombasa & 2 others (Environment and Land Judicial Review Case E001 of 2026) [2026] KEELC 4078 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEELC 4078 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Judicial Review Case E001 of 2026 BA Akello, J July 1, 2026 Between Calist Andrew Mwatela 1st Applicant Jacinta Wanjala Mwatela 2nd Applicant and The Chief Finance Officer County Government Of Mombasa 1st Respondent The County Secretary, County Government Of Mombasa 2nd Respondent County Government Of Mombasa 3rd Respondent Ruling 1.Before this Court for determination is the ex parte Applicants’ Chamber Summons dated 22nd January, 2026 pursuant to Order 53 Rule 1 (1) and (2) of the Civil Procedure Rules and section 3A of the Civil Procedure Act, seeking leave to apply for judicial review orders of mandamus against the Respondents generally, and specifically, prayers in the Chamber Summons are seeking:a.That leave be granted to the Applicants herein to apply for a judicial review order of mandamus against the Respondents to compel them to pay the Applicants the decretal sum of Kshs twenty-five million (25,000,000.00) together with interest at the rate of 12% per annum from 1st March 2017 until payment in full being sums awarded in MSA ELC No. 185 of 2021 Calist Andrew Mwatela & Jacinta Wanjala Mwatela v The County Government of Mombasa.b.That leave be granted to the Applicants herein to apply for a judicial review order of mandamus against the Respondents to compel them to pay the Applicants the decretal sum of Kshs one million six hundred and thirteen thousand, sixty-six shillings and sixty-seven cents (1,613,066.67) being taxed costs in MSA ELC No. 185 of 2021 Calist Andrew Mwatela & Jacinta Wanjala Mwatela v The County Government of Mombasa.c.That the costs of this application be provided for. 2.The application is supported by the statutory statement and the verifying affidavit of Calist Andrew Mwatela sworn on 22nd January 2026, together with the annexed judgment, decree, certificate of costs, affidavits of service and demand correspondence. 3.The material placed before Court shows that in Mombasa ELC No. 185 of 2021, judgment was entered on 18th December 2024 in favour of the Applicants against the County Government of Mombasa in the sum of Kshs 25,000,000 together with interest at 12% per annum from 1st March 2017 until payment in full, plus costs of the suit. 4.A decree was issued on 27th February 2025. The Party and Party Bill of Costs was taxed on 30th July 2025 in the sum of Kshs 1,613,066.67, and a certificate of costs was issued on 15th August 2025. 5.The Applicants further exhibit evidence that the decree, certificate of costs and follow-up demands were served upon the Respondents or their advocates, but no payment has been made. They also state that there is no appeal and no order of stay against the judgment. 6.Their case is that ordinary execution is unavailable against the County Government and that the proper remedy is judicial review by way of mandamus directed at the public officers charged by law with satisfaction of the decree. 7.Having considered the Chamber Summons, the statutory statement, the verifying affidavit and the annexed material, three (3) issues arise for determination:i.Whether the ex parte Applicants have disclosed an arguable case warranting leave to apply for judicial review orders of mandamus.ii.Whether mandamus is, prima facie, properly directed against the intended Respondents as a remedy for enforcement of the decretal sum and taxed costs.iii.Whether the material placed before Court meets the threshold for grant of leave under Order 53 of the Civil Procedure Rules. Analysis and Determination i. Whether the ex parte Applicants have disclosed an arguable case warranting leave to apply for judicial review orders of mandamus 8.The first issue is whether the Applicants have disclosed an arguable case fit for further consideration. The answer is in the affirmative. 9.The law is settled that a money decree against Government, or against a public body protected from ordinary execution, is not enforced by attachment but through the statutory path provided under section 21 of the Government Proceedings Act and, where payment is withheld, by an order of mandamus against the proper accounting officer or other public duty-bearer. 10.In Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza, 2014 KEHC2732 (KLR) the Court affirmed that where a successful litigant has obtained a decree against Government and execution by attachment is barred, mandamus issues to compel performance of the statutory duty to pay. A decree is not made less binding because the judgment debtor is a public body. 11.The Court of Appeal has recently reiterated the same position in Five Star Agencies Limited & another v National Land Commission & 2 others Civil Appeal No. E390nof 2023 where it underscored that Government assets are not available for attachment in satisfaction of a decree and that the decree-holder must pursue the statutory route that culminates, where necessary, in mandamus. 12.The Applicants have exhibited a subsisting judgment, a decree, taxed costs, a certificate of costs, affidavits of service and demand letters. On that material, the intended claim is plainly arguable and cannot be described as frivolous, vexatious or hopeless. ii. Whether mandamus is, prima facie, properly directed against the intended Respondents as a remedy for enforcement of the decretal sum and taxed costs 13.The second issue is whether mandamus is, prima facie, properly directed against the intended Respondents. At this stage, the answer is also yes, subject to refinement at the substantive hearing. 14.Mandamus issues to compel performance of a public duty imposed by law. It must therefore be directed to the office or officer in whom the legal obligation to satisfy the decree rests. Public duty is not abstract. It attaches to an office known to law. In Marigi v Governor, Kajiado County [2025] KECA 523 (KLR), the Court of Appeal clarified that the obligation to settle a decree against a county government lies not with political office-holders in the abstract, but with the officer entrusted by law with the accounting and finance function. Duty is not a cloud floating over government. It rests on an office named or ascertainable in law. 15.In the present matter, the intended Respondents are the Chief Finance Officer, the County Secretary and the County Government of Mombasa. On a prima facie view, that framing is not misconceived, because the complaint is directed at the County’s financial and administrative machinery in relation to payment of a judgment debt. Whether the eventual order should issue against one specific accounting officer, or be more narrowly framed, is a matter that can properly be settled after inter partes hearing. iii. Whether the material placed before Court meets the threshold for grant of leave under Order 53 of the Civil Procedure Rules 16.The third issue is whether the material before Court meets the threshold for leave under Order 53. Again, the answer is yes. 17.The purpose of leave in judicial review proceedings was well stated in Republic v County Council of Kwale & Another ex parte Kondo & 57 others, (Ex parte) [1998] KEHC 2 (KLR), by Waki J (as he then was) namely, to eliminate at an early stage applications that are “…frivolous, vexatious or hopeless”, and secondly to permit forward only those that the Court finds disclose a case fit for further consideration. 18.At the leave stage, the Court is not required to determine the merits with finality or to resolve every evidential and statutory question to the last detail. It is sufficient that the Applicants have laid before Court material showing a judgment debt, taxed costs, service, demand and non-payment. 19.It does not escape the Courts mind that this matter also arises from a land dispute within this Court’s constitutional province. Prolonged non-payment of a decree of this nature does more than delay a private entitlement; it weakens confidence in lawful land administration and in the authority of the Court itself. 20.In Republic v County Government of Meru & 4 others, [2025] KEELC 3804 (KLR) Ebosso J in his decision emphasised that section 21 of the Government Proceedings Act does not sanction indefinite postponement of payment. In Republic v County Secretary, County Government of Meru & 3 others; Kaburu t/a Mwirigi Kaburu & Co Advocates (Ex parte Applicant) [2025] KEELC 4161 (KLR) and Liechi v County Government of Homabay & another [2022] KEELC 15212 (KLR), the Court treated mandamus as the proper vehicle for enforcing monetary decrees arising from land disputes against county governments. 21.That reasoning is deeply persuasive here. A public body cannot permit planning failure to ripen into occupation, enter into arrangements by which the original landowners surrender practical recovery of their land, suffer judgment to be entered against it, and then withhold payment without consequence. To countenance such a pattern would be to weaken not only the authority of the Court, but also the moral architecture of land governance itself. 22.Lord Denning in 1979 (The Discipline of Law) observed that if a public authority does not fulfil the requirements of the law, the court will ensure that it does so and that, even if inconvenience should result, the law must still be obeyed. That observation speaks with force here. A decree of the Court is not an ornament. It is a command of the law. 23.Justice Cardozo B.N in 1921, likewise reminded us that the final cause of law is the welfare of society and that a rule which misses its aim cannot permanently justify its existence. Section 21 of the Government Proceedings Act must therefore be applied as a lawful mode of satisfaction of public decrees, not as a shelter for indefinite non-compliance. 24.The Applicants have accordingly established a case fit for further investigation at an inter partes hearing and have met the threshold for grant of leave. Disposition 23.In the result, and without making any final determination on the merits of the intended substantive motion, the Court makes the following orders:a.Leave be and is hereby granted to the ex parte Applicants to apply for an order of mandamus against the Respondents, or such of them as the Court may upon hearing the substantive motion determine to be the proper statutory duty-bearers, compelling payment of the decretal sum of Kshs 25,000,000 together with interest at 12% per annum from 1st March 2017 until payment in full, being the sum awarded in Mombasa ELC No. 185 of 2021, Calist Andrew Mwatela & Jacinta Wanjala Mwatela v County Government of Mombasa.b.Leave be and is hereby granted to the ex parte Applicants to apply for an order of mandamus compelling payment of taxed costs in the sum of Kshs 1,613,066.67 arising from the said suit.c.The substantive application shall be filed and served within seven (7) days from the date hereof together with an affidavit of service.d.The respondent shall be at liberty to fie and serve their response (if any) within fourteen (14) days from the date of service.e.The matter shall be mentioned on 22nd of July, 2026 for mention for directions on the hearing and disposal of the substantive motion.f.Costs of the Chamber Summons shall be in the cause. RULING DATED AND SIGNED AT MOMBASA AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON THIS 1ST DAY OF JULY 2026.……………………B. A. AKELLO, OGWJUDGEIn the presence of:Gillian – Court AssistantMs Umara for the ex parte Applicant