https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8976

Republic v Attorney General & another; Mwangi & another (Ex parte Applicants) (As the Legal Representative of the Estate of Geofreykariuki Wanjau - Deceased) (Judicial Review E004 of 2025) [2026] KEHC 8976 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 8976 (KLR) Republic of Kenya In the High Court at Nakuru Judicial Review E004 of 2025 PN Gichohi, J June 24, 2026 IN THE MATTER OF EXECUTION AGAINST THE GOVERNMENT AND IN THE MATTER OF SATISFACTION OF DECREE AND IN THE MATTER OF SATISFACTION OF CERTIFICATE OF COSTS UNDER ORDER 21 RULE 9 OF THE CIVIL PROCEDURE RULES, 2010 AND IN THE MATTER OF SECTION 21 OF THE GOVERNMENT PROCEEDINGS ACT, CAP 40 LAWS OF KENYA AND IN THE MATTER OF AN ORDER OF MANDAMUS Between Republic Applicant and The Hon. Attorney General 1st Respondent The Principal Secretary Ministry Of Interior And Coordination Of National Government 2nd Respondent and Monicah Njambi Mwangi Ex parte Applicant Josephine Muthoni Kariuki Ex parte Applicant As the Legal Representative of the Estate of Geofreykariuki Wanjau - Deceased Judgment 1.Pursuant to leave granted by this Court on 8th April, 2025, the Ex- parte Applicants filed the Notice of Motion dated 12th April, 2025, under Order 51, Rule 1,2 & 4, Order 53 Rule 3 of the Civil Procedure Rules 2010, Section 8 and 9 of the Law Reform Act, Cap 26 and Section 3 A of the Civil Procedure Act, Cap 21 seeking Orders that: - 1.This Honourable Court do issue an order of Mandamus compelling the 1st & 2nd Respondents herein to pay the Ex parte Applicants the decretal sum of Kshs.1,500,000/= plus interest and costs of the suit amounting to Kshs. 260,553/= in satisfaction of the judgment as delivered by Hon. Mulwa on 21st February 2019 in Nakuru High Court Petition No. 12 Of 2013. 2.The costs of this Application be provided for. 2.The grounds are on the face of the Motion and supported by the affidavit sworn by Monicah Njanbi Mwangi on even date. She stated that the deceased Applicant is the decree holder and /or judgment creditor as against the Respondents in relation to the judgment in the High Court of Kenya at Nakuru Petition No. 12 of 2023, but the decree and the certificate of costs remain unsatisfied to date. That has prejudiced the deceased Applicant, hence this application. 3.She explained that the ex-parte Applicants are the legal representatives of the Estate of the deceased George Kariuki Wanjau, having obtained a Limited Grant Ad Litem Cause No. 318 of 2024 in Nakuru Chief Magistrate’s Court for purposes of filing a Judicial Review against the Government. 4.She deponed that 21 days are over since the decree and the Certificate of costs were issued and served on the Respondents, yet they have not paid. She therefore urged the Court to issue the orders sought as this Court has jurisdiction to do so. Ex-paret Applicants’ written submissions dated 27th August, 2025 5.These were filed by their Advocates (Mirugi Kariuki & Co. Advocates) who submitted on the two prayers on the face of the Notice of Motion and supported the same with a list of case law. 6.On whether the order of Mandamus should issue, it was submitted that the issue is not whether a judgment dated 21st February 2019 in Petition No. 12 of 2013 exists or whether procedural formalities were complied with for a decree issued on 27th March 2019, a Certificate of Costs on 2nd March 2020 and a Certificate of Order against the Government on 1st October, 2020 but simply about whether the Government can ignore these with impunity. 7.It was submitted that with the Ex-pate applicants having fulfilled every requirement of the law in this matter, Section 21 (3) of the Government Proceedings Act is unequivocal that once a Certificate of Order is issued and served, the accounting officer shall pay. Despite the fact that the provision is in mandatory terms, the Respondents have failed to pay, hence the failure is not of law but of will. 8.Emphasis was laid that twelve years have passed since the petition was filed; six years since the judgment; five years since the Decree and Costs were certified, and therefore, if this court withholds the mandamus, the justice would be effectively buried. 9.Citing the case of Republic v Attorney General & another ex parte James Alfred Koroso [2013]eKLR, to submit that where the government refuses to pay a decree, Mandamus is the only mechanism available, and therefore, the decree by this Court must bite, that is, the Order of Mandamus should issue. 10.On whether costs should be awarded to the Ex Parte Applicants, it was submitted that, as held by the Supreme Court in Rai v Rai (Petition 4 of 2012) [2014] eKLR, costs are meant to compensate, not punish. 11.In support, it was submitted that in the instant case, the Ex- Parte Applicants were driven back to court by the Respondents to honour the existing judgment and therefore, to deny them costs would be to punish obedience to the law and reward government lethargy. In support, the Ex-Prate Applicants cited Republic v Auditor General & another ex parte County Government of Embu [2018] e KLR to submit that costs are to recompense an innocent party compelled into needless litigation. They therefore urged this Court to exercise its discretion in favour of the ex-pate Applicants and award them the costs of this application. In conclusion, they urged the Court to allow the application with costs. Analysis and Determination 12.After considering the application, Affidavit in support and annexures thereto together with the submissions, the only issue that arises for determination herein is whether the Ex- Parte Applicants have established grounds to warrant this Court to grant the orders sought. 13.It is settled law that before an order of mandamus is issued, an Applicant must abide by the procedure in Section 21 of the Government Proceedings Act, which provides that: -“(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.” 14.It is trite that once the Certificate of Order against the Government is served on the Hon Attorney General, the Accounting Officer concerned is obligated under Section 21(3) of the Government Proceedings Act, to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon. 15.Further, the circumstances under which Judicial Review Order of Mandamus are issued were discussed in the case Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] KECA 58 (KLR), where the Court of Appeal cited with approval, Halsbury’s Law of England, 4th Edition. Vol. 7 p. 111 para 89 thus:-“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.”(Emphasis added). 16.In this case, a Certificate of Order against the Government was issued on 1st September 2020 for the sum of Kshs. 1,500,000/= and served upon the Respondent through the Hon. Attorney General. The law is clear that once the Certificate of Order Against the Government is served on the Hon Attorney General, Section 21(3) imposes a statutory duty on the Accounting Officer concerned to pay the sums specified in the said Order to the person entitled or to his advocate together with any interest lawfully accruing thereon. 17.There is a clear Judgment issued by the High Court in favour of the Ex-Parte Applicant George Kariuki Wanjau for violation of his rights, but he passed on before he could enjoy the fruits of his judgment. That prompted the Ex- Parte Applicants to obtain a Limited Grant ad Litem for purposes of pursuing compensation arising from Petition No. 12 of 2013 by filing the instant application. 18.An Order of Mandamus obligates a government officer to pay a debt, determined by the High Court. Despite the service of the said documents and this application, there was no response or attendance in court. Litigation must surely come to an end. In light of the foregoing, this Court is satisfied that the Ex -Parte Applicants have demonstrated that they are deserving of the Order of Mandamus sought in the application dated 12th April, 2024. 19.Accordingly, the application is granted in the following terms:-1.An Order of Mandamus is hereby issued compelling the 1st & 2nd Respondents herein to pay the Ex parte Applicants the decretal sum of Kshs.1,500,000/= plus interest and costs of the suit amounting to Kshs. 260,553/= in satisfaction of the judgment as delivered by Hon. Janet Mulwa, J on 21st February 2019 in Nakuru High Court Petition No. 12 of 2013.2.The Respondents to bear the costs of this application. DATED AND SIGNED AT NAKURU THIS 5TH DAY OF JUNE, 2026.PATRICIA GICHOCHIJUDGEDELIVERED AT NAKURU THIS 24TH DAY OF JUNE, 2026JUDGE