https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11285

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **JUDICIAL REVIEW AND CONSTITUTIONAL DIVISION** **JUDICIAL REVIEW APPLICATION NO. E002 OF 2024** **REPUBLIC-------------------------------------------------------APPLICANT** **VERSUS** **THE HO. ATTORNEY GENERAL-----------------------------1ST RESPONDENT** **THE DIRECTOR GENERAL** **NATIONAL INTELLIGENCE SERVICE-----------------------2ND RESPONDENT** **AND** **CAROLINE GAKII KABERIA---------------------------EX-PARTE APPLICANT** **JUDGMENT** 1. Coming up for determination is the Notice of Motion herein dated 28th July 2025 in which the Ex-Parte applicant seeks the following orders; 2. That an order of mandamus be and is hereby issued to compel the Director General in the National Intelligence Service to pay to the ex-parte applicant a sum of Two Million, One hundred and Thirty-Eight Thousand, Two Hundred and Eighty-Six Kenya Shillings (2,138,286.00/=) and interests thereon at court rates at 12% p.a. from the 28th June 2022, the date of the award to the date of payment in full, plus assessed costs in the sum of Kshs. 215,980/=, the sum being the decretal sum arising out of Maua CMCCC No. 4 of 2018, CAROLINE GAKII **KABERIA V JULIUS KANG’ETHE, THE NATIONAL INTELLIGENCE SERVICE AND THE HON ATTORNEY GENERAL**. 3. That an order of this Honorable Court be granted compelling the Respondents to pay the costs of this application. 4. The application is anchored on the supporting affidavit of the supporting affidavit sworn by the ex-parte applicant on even date. 5. She avers that judgment was entered against the 2nd defendant in Maua MCCC No. 4 of 2018, CAROLINE GAKII KABERIA V JULIUS KANG’ETHE, THE NATIONAL INTELLIGENCE SERVICE AND THE HON ATTORNEY GENERAL in the sum of Kshs.2,138,286/= plus costs and interests as from the 28th June 2022 till payment in full. 6. She further avers that the outstanding figure inclusive of costs and interests as of 15th February 2024 was Kshs. 2,781,863.90/=. Her contention is that the respondents did not oppose nor seek to set aside and/or appeal against the subsequent certificate of order issued against the government which set out the actual amount payable to her. That she has on numerous occasions written to the 1st Respondent forwarding copies of the certificate of order and the decree asking for payment but the same has not been forthcoming. That the 2nd respondent will not pay the decretal sum unless the order of mandamus sought herein is granted. 7. The application was opposed by the respondents who filed the grounds of opposition dated 28th April 2026. 8. The respondents state that the 2nd respondent has requested for budgetary allocation to settle the decretal sum in this matter in the financial years 2023/2024, 2024/2025, 2025/2026, but did not receive the necessary allocations. 9. The respondents further contend that they are willing and ready to settle the ex-parte applicant’s dues as soon as the requested budgetary allocations are availed. They thus sought for more time for approval of the same. 10. Parties were directed to file submissions but as at the time of writing this judgment only the ex parte applicant’s submissions were on record. 11. Having considered the application, the responses thereto and the ex-parte applicant’s written submissions, this court finds that the following issues arise for determination; 12. What is the nature of an order of mandamus 13. Whether the ex-parte applicant is entitled to the orders sought. **What is the nature of an order of mandamus** 1. An order of mandamus is writ used by this court to compel the performance of a statutory duty owed to an applicant. In the case of **Kenya National Examination Council v Republic, Ex- Parte Geoffrey Gathenji & 9 others, Nairobi Civil Appeal No. 266 of 1996** the purpose and scope of an order of mandamus was described as follows: **“The next issue we must deal with is this: What is the scope and efficacy of an order of mandamus? Once again, we turn to HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89. That learned treatise says: -** **“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.”** **At paragraph 90 headed “the mandate” it is stated:** **“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.”** **What do these principles mean? They mean that an order of mandamus will 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.”** 1. Article 23(1), (2)(f) of the Constitution of Kenya provides as follows regarding such an order; **“1…The High Court has jurisdiction, in accordance with Article 165 to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of rights.”** **“3…In any proceedings brought under article 22, a court may grant appropriate relief, including…** **f) An order of judicial review.”** 1. Section 11(1)(f) of the Fair Administrative Action Act also provides as follows; **“In proceedings for judicial review under**[**section 8**](https://kenyalaw.org/akn/ke/act/2015/4/eng%402022-12-31#part_III__sec_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”** 1. From the foregoing, provisions of the law, it is abundantly clear that this court has the requisite jurisdiction, where appropriate, to issue a writ of mandamus compelling any person or body to undertake an act that it is by law required to so undertake. 1. For the court to issue an order of mandamus, it has to be satisfied that the person to whom the writ is directed has a statutory duty to undertake certain action and has failed or neglected to undertake such action. 2. It is thus clear that the onus of paying the ex parte applicant lies with the 2nd respondent. 3. The 2nd respondent has not denied liability, but has sought time to get budgetary allocation. 4. It is clear that three (3) budget cycles have passed, yet the 2nd respondent is yet to make any payment. It is thus reasonable to conclude that it has failed to act as is required of that office. 5. I find that the application is merited and the following orders shall issue as against the 2nd respondent; 6. **An Order of mandamus is hereby issued against the 2nd respondent to pay the ex parte applicant Kshs. 2,138,286.00/= and interests thereon at court rates at 12% p.a. from the 28th June 2022, the date of the award to the date of payment in full, plus assessed costs in the sum of Kshs. 215,980/=, the sum being the decretal sum arising out of Maua MCCC No. 4 of 2018 CAROLINE GAKII KABERIA V JULIUS KANG’ETHE, THE NATIONAL INTELLIGENCE SERVICE AND THE HON ATTORNEY GENERAL** 7. **The Costs to the ex parte applicant to be borne by the 2nd respondent.** **Dated, signed & delivered at Meru this 16th day of July 2026.** **H.M. NYAGA** **JUDGE**