https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7733

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **JUDICIAL REVIEW NO. E374 OF 2025** **RED DOT DISTRIBUTION EPZ LTD…………………...……APPLICANT** **VERSUS** **THE KENYA REVENUE AUTHORITY…………...…1ST RESPONDENT** **THE COMMISSIONER** **OF CUSTOM SERVICES………………………………....2ND RESPONDENT** **JUDGMENT** 1. These Judicial Review proceedings were initiated under certificate of urgency, by way of an *ex parte* chamber summons, dated 30th October 2025, in Milimani HCJR Miscellaneous No. E346 of 2025, for leave to commence a Motion for a *mandamus* order*,* directed at the 2 respondents, to satisfy a decree, in Nairobi HCCOMPET/E005/2022, together with costs and interests. The leave sought was granted, on 6th November 2025. 2. The contemplated Motion was filed herein, dated 24th November 2025. It is supported by an affidavit, sworn on 25th November 2025. The said Motion should not have been supported by any fresh affidavit, for, according to Order 53 rule 4 of the Civil Procedure Rules, the said Motion should be served together with the statement and the verifying affidavits filed at the leave stage. So, the affidavit of 25th November 2025 is misplaced. Nonetheless, no harm has been done, since the affidavit of 25th November 2025 is a replica of that of 30th October 2025. 3. According to the statement of facts and the affidavits, the applicant obtained a judgement in Nairobi HCCOMPET/E005/2022, for Kshs. 12,337,310.00. A decree was subsequently extracted and served. A certificate of order against the government was also obtained and served. 4. Several documents are exhibited in the applications, in support of the quest. These are the ruling in Nairobi HCCOMPET/E005/2022, delivered on 30th November 2023; a demand notice, borne on a letter dated 5th June 2025, demanding Kshs. 4,080,008.00, being the balance outstanding on the decretal amount; an email forwarding the demand letter, dated 5th June 2025, to the email address of Kelvin.Kariithi@kra.go.ke and LegalServices@kra.go.ke; the decree issued in Nairobi HCCOMPET/E005/2022, dated 27th June 2025; a certificate of order against the Government, dated 8th July 2025; a letter, from the Advocates for the applicants, dated 10th July 2025, addressed to the 1st respondent, forwarding a copy of the certificate of order against the government; and an email, of 10th July 2025, addressed to the 1st respondent, forwarding the certificate of order against the government, to the email address of Kelvin.Kariithi@kra.go.ke and LegalServices@kra.go.ke. 5. The respondents were served with the Motion, for I seen, on the record, an affidavit of service, sworn on 11th December 2025, evidencing service, of the substantive motion, both electronically and physically, on 2nd and 3rd December 2025. 6. They filed a replying affidavit, sworn on 13th April 2026, by Diana Almadi. The point made in it is that the application is in bad faith, for the respondents have settled a portion of the decree, to the tune of Kshs. 8,257,302.00, leaving a balance of Kshs. 4,080,008.00. It is averred that the respondents have not disobeyed the court order, and were keen on settling that balance, and is requesting for time to complete the refund process. 7. The application was canvassed by way of written submissions, filed by both sides. I have read through the said written submissions, and noted the respective arguments made in them. 8. The processes for levying execution of court decrees and orders, as set out in the Civil Procedure Act, Cap. 21, Laws of Kenya, and the Civil Procedure Rules, are not available against the Government. Proceedings against the Government are governed by the Government Proceedings Act, Cap. 40, Laws of Kenya, in terms of how to initiate the proceedings, and what to do after a decree is obtained. The requirement is that, upon a decree or order being obtained against the Government, the party, desiring to have it satisfied or complied with, ought to obtain, from the court, a certificate of order against the Government, which should then be served. 9. The law, on satisfaction of orders and decrees against the Government, is section 21 of the Government Proceedings Act. It is section 21(1) which requires extraction of the certificate of order against the Government from the court record. Section 21(2) requires service of that certificate on the Attorney General. It is section 21(3) which directs the Accounting Officer, for the Government department concerned, to pay, to the person entitled or to his Advocate, the amount appearing by that certificate. It is section 21(4) which declares that no execution or attachment, or any other process of that kind, should be issued by the court, for enforcement of payment by the Government of any money or costs decreed or ordered by a court against it. 10. The accounting instrument, for the purpose of Government operations, that unlocks payment of money from the Government, in satisfaction of a court order or decree, is the certificate of order against the Government. This document is critical. Without it, the process of payment cannot be unlocked. Any person, desiring to be paid by Government, on account of a decree or order against it, must first obtain the said certificate. That certificate must then be served on the Attorney General; in case the decree or order is against the national Government. The Government should only be expected to settle or satisfy the decree upon being notified of the same, through that certificate being served upon them, in accordance with the law. See *Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza* [2012] eKLR. 11. *Mandamus* is available where a statutory or public duty exists, and it issues to enforce that duty. See *Kenya National Examinations Council vs. Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others* [1997] eKLR. The duty, on the part of the Government, with respect to court orders and decrees, to pay or settle a court decree or order, accrues, not upon the order or decree being passed, but upon the accounting document, known as certificate of order against the Government, being served on the relevant Government official. *Mandamus* can only be obtained on the strength of service of the said certificate, for it is upon that service that the duty to act accrues. 12. The question in this case then is, whether the duty to pay has accrued. The answer to that question would depend on whether a certificate of order against the Government was obtained, and if it was, whether it was served on the relevant Government functionary. 13. My perusal of the affidavits, filed herein by the applicant, sworn on 30th October 2025 and 25th November 2025, reveal that a certificate of order against the Government, in this case the respondents herein, was obtained from the trial court, and was issued on 8th July 2025. The said certificate is a court instrument, in the same footing with a summons, notice, order or decree. Such court instruments are served upon the concerned parties, through a court process server, either personally, or through substituted service. I have seen no affidavit of service, in respect of the said certificate of order against the Government, annexed to the said 2 affidavits. However, I have seen other evidence pointing to the said document or court process, that is the certificate of order against the Government, having been served on the relevant Government agent for the purposes of these proceedings, being by the letter and email dated 10th July 2025. 14. As due process was followed, for the all-important accounting document, known as the certificate of order against the Government, was furnished upon the respondents herein, issued with respect to the decree in Nairobi HCCOMPET/E005/2022, to facilitate settlement of the decree, in accordance with the relevant Government accounting protocols, the duty upon them, to satisfy that decree, has accrued, and there is, therefore, basis upon which a *mandamus* order can issue against them. See *Kungu vs. County Government of Nairobi* [2024] KEHC 3265 (KLR). 15. The respondents do not contest the decree, nor service of the order against the government. Their case is that the total judgement sum was Kshs. 12,337,310.00, out of which they have settled Kshs. 8,257,302.00, leaving a balance of Kshs. 4,080,008.00, which is the amount the subject of these proceedings. They sense bad faith, for they have shown goodwill, by settling a larger portion of the decree. They submit that they have not refused to settle the balance, and plead for some time. 16. The *mandamus* order issues to enforce the duty to pay, where that duty has accrued. The certificate of order against the government was served, hence the duty to pay has accrued. *Mandamus* is available in this case. It does not issue only where there is refusal or reluctance to pay, but where a duty to pay is demonstrated to have accrued. It could issue as a matter of course. The plea for time to settle the decree can be considered thereafter. 17. In the end, I hereby find that the application, dated 24th November 2025, is merited, and I hereby allow it as prayed, in prayer 1, with costs. Orders accordingly. **DELIVERED, VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 5TH DAY OF JUNE 2026.** **W MUSYOKA** **JUDGE** **Mr. Brian, Court Assistant.** **Advocates** **Mr. Ong’anya, instructed by O’Bang Law, Advocates for the applicant.** **Ms. Mulinge, instructed by Diana Almadi, Advocate for the respondents.**