https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5061

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC CASE NO. 823 OF 2013** **JANE MUTHONI NDERITU ………………………………….………PLAINTIFF** **-VERSUS-** **GODFREY HINGA GATIRO** **GEOFFREY KARIUKI MURIITHI** **JOYCE NYAMBURA MACHARIA** **NAIROBI CITY COUNTY GOVERNMENT …………………… DEFENDANTS** **RULING** 1. By a Notice of Motion dated 5th March 2026, brought under Sections 1A, 3A, and 99 of the Civil Procedure Rules, the Plaintiff/Applicant seeks the following orders: * 1. ***Spent.*** 2. ***THAT this Honourable Court be pleased to issue an order reinstating the judgment of Honourable Lady Justice J.N. Mogeni delivered on 27th April, 2022 and to find that the Decree issued on 14th June, 2022, remains valid and enforceable.*** 3. ***THAT upon granting of Prayer (1) above, this Honourable Court be pleased to issue an Order against the Government, enforceable against the 4th Respondent and/or make any further necessary orders for the implementation and execution of the terms of the Decree issued on 14th June, 2022.*** 4. ***THAT the costs of this application be in the cause.*** 2. The application is based on the grounds appearing on its face together with the supporting affidavit of Anthony Gikaria, Advocate, sworn on even date. **THE APPLICANT’S CASE** 1. The deponent averred that the judgment delivered on 27th April 2022 by Hon. Lady Justice J.N. Mogeni resulted in a Decree issued on 14th June 2022. 2. He further averred that on 11th February 2025, this Court set aside the judgment and granted the 1st, 2nd, and 3rd Respondents leave to file their defence within 7 days. The Plaintiff was also awarded the thrown-away costs of Kshs. 200,000/= payable within 14 days. 3. He stated that the 1st, 2nd, and 3rd Respondents failed to pay the throwaway costs within the stipulated period. However, following their application, the Court extended the time for payment by fourteen (14) days on 21st November 2025. 4. He stated that the 1st, 2nd, and 3rd Respondents again failed to comply with the extension orders of 21st November 2025, despite compliance being a mandatory condition of the Court's order. He argued that conditional orders are not self-executing and must be strictly complied with. 5. He stated that, in the absence of any legal barrier to execution, the Applicant applied for an order against the Government to execute the judgment against the 4th Respondent, based on the 4th Respondent's letter dated 6th August 2025, in which the 4th Respondent expressed willingness to settle the decretal sum of Kshs. 8,000,000/= and the taxed costs of Kshs. 640,552/=, subject to a waiver of accrued interest. 6. He explained that the request could not be processed because the registry was of the view that the Court needed to clarify the confusion that arose when it set aside the ruling dated 11th February 2025. This ruling had set aside the judgment and granted leave to defend, but did not specify that, in default of compliance, the original judgment would stand and remain enforceable. 7. He argued that the 1st, 2nd, and 3rd Respondents, having failed to meet the conditions under which they were allowed to defend the suit, could not rely on a defence filed later to oppose the enforcement of the original judgment. 8. In conclusion, the deponent urged the Court to reinstate and/or reaffirm the judgment of 27th April 2022 and the Decree of 14th June 2022 as valid and enforceable. 9. Though duly served, the Respondents did not file any response to the application **ANALYSIS AND DETERMINATION** 1. Having considered the application and the affidavit in support, the only issue for determination is whether the Applicant is entitled to the orders sought. 2. The record shows that Judgment was entered in favour of the Plaintiff on 27th April 2022 by Hon. Lady Justice J.N. Mogeni after the 1st to 3rd Defendants failed to enter an appearance or file a defence despite being served through substituted service. A Decree was subsequently issued on 14th June 2022. The 4th Defendant filed a Defence and participated through its advocate in cross-examining the Plaintiff's witnesses. 3. In its ruling delivered on 11th February 2025, this Court set aside the judgment on the condition that the 1st to 3rd Defendants file their defence within 7 days of the ruling, and pay the thrown-away costs of Kshs. 200,000/= within 14 days of the ruling. 4. However, the 1st to 3rd Defendants failed to pay the throwaway costs within the period specified by this Court's ruling of 11th February 2025. They subsequently filed an application dated 9th April 2025 seeking, among other orders, an extension of time to pay the throwaway costs and a declaration that their defence filed on 26th February 2025 be deemed duly filed. In its ruling dated 21st November 2025, this Court again exercised its discretion in favour of the Defendants and extended the time for payment of the thrown-away costs by a further 14 days from the date of that ruling. The Court further directed that the defence filed on 26th February 2025 would be deemed as filed only upon payment of the throwaway costs. 5. The Plaintiff asserts that the 1st to 3rd Defendants again failed to comply with the order of 21st November 2025. The Defendants did not offer any explanation for their continued non-compliance. Consequently, this Court is left with the Plaintiff's uncontested assertion that the thrown-away costs remain unpaid to date. 6. Having been given two opportunities to meet the condition that authorised their defence of this suit, the 1st to 3rd Defendants chose not to do so. They cannot now benefit from a defence that was only considered to be filed upon the payment of costs that they have persistently refused to settle. 7. This Court finds that the 1st to 3rd Defendants have forfeited their right to defend the suit due to their failure to comply with the conditions imposed by this Court's rulings of 11th February 2025 and 21st November 2025. In the circumstances, the judgment of this Court dated 27th April 2022 is reinstated, and the Decree of 14th June 2022 remains valid and enforceable. 8. Regarding the prayer for an Order Against the Government enforceable against the 4th Defendant, the Plaintiff relies on a letter from the 4th Defendant dated 6th August 2025, which indicates its willingness to settle the decretal sum of Kshs. 8,000,000/= and the taxed costs of Kshs. 640,552/= as assessed by the Taxing Officer in a ruling dated 9th December 2024, subject to a waiver of accrued interest. The process for execution against the Government is specifically prescribed by statute and is not governed by the ordinary modes of execution available against private parties. 9. Section 21(1) of the Government Proceedings Act provides the procedure for enforcing judgments against the Governments and entities to which the Act applies, including County Governments. 10. Under the provision, once judgment has been entered and the requisite period has elapsed, the successful litigant is entitled to apply for a certificate of Order against the Government. Upon issuance and service of the certificate, the accounting officer of the relevant government entity is under a statutory duty to satisfy the decree. The certificate serves as a statutory mechanism for pursuing payment as ordinary execution by attachment does not issue against the government. 11. The record shows that judgment was entered in favour of the Applicant and a decree was issued. There is no evidence indicating that the judgment has been stayed or set aside. The application is unopposed, and there is no legal impediment to granting the orders sought. Consequently, the Court is satisfied that the Applicant is entitled to an order against the government in accordance with Section 21 of the Government Proceedings Act. For avoidance of doubt, this order does not authorize execution by attachment against the County government. Should the decree remain unsatisfied after compliance with the statutory procedure, the Applicant shall be at liberty to pursue an appropriate remedy available in law. 12. The upshot of the foregoing is that the application dated 5th March 2026 is merited and is hereby allowed in the following terms: 1. ***The judgment of Hon. Lady Justice J.N. Mogeni dated 27th April 2022 is hereby reinstated. The Decree issued on 14th June 2022 remains valid and enforceable.*** 2. ***A certificate of Order against the Government shall issue in respect of the judgment and decree herein against the Nairobi County government.*** 3. ***The Certificate shall be served upon the relevant accounting officer of the county government in accordance with section 21 of the Government Proceedings Act.*** 4. ***Costs of this application shall be in the cause.*** **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY 2026.** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF**: Gikaria for the Plaintiff Indosio holding brief for the 4th Defendant Vena-Court assistant