https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10154

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **JUDICIAL REVIEW DIVISON** **JUDICIAL REVIEW CASE NO. E019 OF 2024** **NANAK ENGINEERING WORKS ………………...EXPARTE APPLICANT** **VERSUS** **LEONARD NGIROH LIMARENG,** **AG CLERK - WEST POKOT COUNTY ASSEMBLY……...RESPONDENT** **RULING** 1. This ruling is with respect to the Applicant’s application seeking an order of *mandamus* to issue against the Respondent, compelling him to satisfy the decree and Certificate Order issued in **Eldoret Chief Magistrate’s Court Civil Case No. 376 of 2024.** 1. The gist of the Applicant’s case is that in **Eldoret Chief Magistrate’s Court Civil Case No. 376 of 2024,** they were awarded Kshs. 2,091,402/= being the decretal sum of which the Respondent has to date only paid Kshs. 1,768,965/= leaving unpaid balance of Kshs. 322,437/= which continues to attract interest at Court rates awarded. The Applicant contends that despite several demands, Court mentions and payment assurances, the Respondent has since July 2025, unreasonably, arrogantly and without lawful cause refused to pay the balance due. The Respondent does not deny that he owes the Applicant the amounts claimed. 2. The Court herein gave parties an opportunity to amicably settle the issue and on 25th May 2025, when parties appeared before the court, the Respondent’s Counsel stated that it had so far paid a total of Kshs. 1,813,544/= vide the IFMIS system. He further indicated that the amount in contention is the amount the tax element of the entire decretal sum calculated at at 26%. Counsel submitted that the IFMIS system is configured to automatically deduct any and every tax from all payments and so therefore they were unable to pay the entire decretal sum including tax. Counsel therefore stated that he has to consult the controller of budget because in every payment they have to factor in the element of tax which the system then deducts automatically. 3. On the part of the Applicant’s Counsel, he acknowledged that the Applicant received the payment less the taxed amount and argued that the Respondent was aware that costs were also assessed and interest included. Counsel faulted the Applicant for paying the principal amount minus the costs that were awarded. 4. It is evident that the parties have reached a stalemate regarding the satisfaction of the judgment debt. Specifically, there is no fundamental disagreement concerning the payment of the total decretal amount, which encompasses both the principal costs awarded as by the trial Court. The only hitch with the configuration of the payment system used by the Respondents as he has herein explained. 5. Given this persistent inability to achieve a mutual resolution, the intervention of this Court is now requisite to adjudicate the dispute and provide a definitive determination on the matter. **Determination** 1. The main issue for determination is “**whether the Applicant is entitled to the relief of mandamus compelling the Respondent to pay the entire decretal amount”.** 1. Pursuant to **Section 21 of the Government Proceedings Act**, a successful litigant holding a judgment against the government must obtain a Certificate of Order against the Government. This certificate is then served upon the relevant accounting officer to facilitate payment. 2. Unlike private litigation, the law expressly prohibits standard execution methods, such as the attachment of property or seizure of assets against the State. This restriction is a deliberate policy mechanism designed to safeguard public resources and ensure that essential government operations remain uninterrupted by legal liabilities. 3. A County Government is a government institution by dint of being a State organ as provided under **Article 1(3) of the Constitution** as follows; **Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution—** **(a)Parliament and the legislative assemblies in the county governments;** **(b)the national executive and the executive structures in the county governments; and** **(c)the Judiciary and independent tribunals.** 1. Further, **Article 176 (1) of the Constitution** creates the Executive structure in the County Government as follows; **There shall be a county government for each county, consisting of a** **county assembly and a county executive** 1. **Article 260 of the Constitution** defines the State as hereunder **"State", when used as a noun, means the collectively of offices, organs and other** **entities comprising the government of the Republic under this Constitution** and at (h) thereof defines a state office to include; **a member of a county assembly, governor or deputy governor of a county, or other member of the executive committee of a county government;** 1. Lastly, the same said **Article 260 of the Constitution** defines a **"State organ" to mean a commission, office, agency or other body established under this Constitution.** In this regard, every County Government then, being a body established under this Constitution is a government institution and the execution of decrees against it is governed by the **Government Proceedings Act.** 2. **Section 21 of the Government** **Proceedings Act** Cap 40 LOK provides for the procedure to be followed by a party who seeks settlement of a decretal sum against the Government as follows: - **21. Satisfaction of orders against the Government** **(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.** **(2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.** **(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.** **(4) Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.** **(5) This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.** 1. **Section 21(5) of the County Governments Act Cap 265 LOK** thereforemakes it clear that a County Government enjoys the same protection from execution and attachment as the National Government. 2. A reading of **Section 21(4)** of the **Government Proceedings Act** prohibits execution against the Government as provided under the entirety of the said Section 21 herein reproduced. The only appropriate and available remedy in decree against the government is by way of an order for mandamus and in this regard the recourse that the applicant seeks is appropriate. 3. The question then is whether mandamus order is available to the Applicant as prayed with regard to the tax element of the decree. The Court of Appeal in the case of **R vs. Kenya National Examination Council Ex-Parte Geoffrey Gathenji** **&** **9 Others, Civil Appeal No.266 of 1996**, cited a passage in **Halsbury's Laws of England 4th Edition Vol. 1(1) Page 111 paragraph 89** and **90** in explaining 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 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 effectual……the order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”** 1. In **Republic vs. The Attorney General & Another ex parte James Alfred Koroso, High Court Judicial Review Miscellaneous Application No. 44 of 2012** Odunga J (as he then was)stated *inter alia* thus: **“…the present case the ex parte applicant has no other option of realising the fruits of his judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that he has been awarded is realised. Unless something is done he will forever be left baby-sitting his barren decree….”** 1. In the circumstances of this case, an impasse has emerged between the parties on the enforcement of the decree as regards the taxation element as already herein summarized. The court however notes that the Respondent is not averse to satisfying this aspect of the decree save for the technical hitch that he attributes to the configuration of the IFMIS payment system. In this regard, it is my considered opinion that the solution then lies with the proviso to Section 21 of the Government Proceedings Act herein cited which is to he following effect; **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.** **(2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.** 1. Consequently, as can be gleaned from the herein cited cases, because an order of Mandamus remains the only viable mechanism to compel the satisfaction of the debt. so that the Applicant is not left with a mere "paper decree", a hollow victory that offers no practical relief as observed by Odunga J (as he then was) in **Republic vs. The Attorney General & Another ex parte James Alfred Koroso, High Court Judicial Review Miscellaneous Application No. 44 of 2012 (supra),** thus indefinitely denying an Applicant the fruits of their judgment. 2. In considering the Respondents explanation that the IFMIS system automatically deducts the cost element in any decree submitted for the County Government’s satisfaction, the court now hereby allows the Applicant’s Application for an order of *mandamus,* butwith respect to the unpaid balance of Ks.Kshs. 322,437/- only, together with interest thereon at court rates from the date of judgement and further directs that a separate certificate for these costs be issued and the amount is to be paid to the Applicant by the Respondent. **Read** **Dated and Signed Virtually at BUNGOMA on 9th July 2026** **E. OMINDE** **JUDGE**