https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11272

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **JUDICIAL REVIEW NO. E106 OF 2025** **REPUBLIC……………………………………………..……………………….……….APPLICANT** **VERSUS** **COUNTY COUNCIL OF NAIROBI** **(NAIROBI COUNTY GOVERNMENT) ………………………..…………..RESPONDENT** **JUDGEMENT** 1. The pleadings in this matter are rather poorly framed. The applicant is reflected as the Republic, but there is no *ex parte* applicant named, yet it would appear that that party should be Hatari Security Guards Limited. For a proper framing of judicial review applications see *Mohamed Ahmed vs. R* [1957] EA 523 and *Farmers Bus Service and others vs. The Transport Licensing Review Appeal Tribunal* [1959] EA 779. Anyhow, the court was moved by way of a motion, dated 12th September 2025, supported by an affidavit, sworn on even date, by Mr. Josphat Kimani Mwangi. The application was for leave to file for a *mandamus* order. 2. That application was placed before Chigiti J, on 16th September 2025, and directions were given, for filing of responses, and canvassing by way of written submissions, on the basis that it had been initiated as an Originating Motion. A mention date was fixed for 29th October 2025. That mention happened, and the court directed the parties to comply with the directions of 16th September 2025 first. 3. The matter was mentioned next on 3rd March 2026. The court allowed the application, dated 12th September 2025. The effect was to grant leave to the applicant, whoever that applicant was, to file a substantive motion for the order of *mandamus*. It was directed that the miscellaneous file for leave be closed. That meant that the substantive motion was to be filed in a separate substantive judicial review cause. 4. Despite the court having allowed the motion, dated 12th September 2025, on 3rd March 2026, I see, on the record, a letter, dated 5th March 2026, from the Advocates for the applicant, addressed to the Deputy Registrar, requesting that the said application, dated 12th September 2025, be allowed by consent. Those Advocates had not attended court on 3rd March 2026, when that application was allowed. 5. Although this file ought to have been closed, following the orders of 3rd March 2026, the court registry allowed the applicant to file a substantive motion, herein, dated 13th May 2026, for the order of *mandamus*, no doubt based on the leave granted on 3rd March 2026. No timelines had been given, within which the substantive motion was to be filed, and I doubt whether the substantive motion was filed within the 21 days, envisaged under Order 53 rule 3(1) of the Civil Procedure Rules, which provides that upon leave being granted, the substantive motion should be filed within 21 days. Leave was granted on 3rd March 2026, and the substantive motion was filed on 13th May 2026, some 71 days thereafter. The 21 days had lapsed on or about 24th March 2026. 6. Anyhow, the motion of 13th May 2026, was placed before me on 18th May 2026, under certificate of urgency, and I gave directions on filing of replies. There was a mention, in open court, on 23rd June 2026. Mr. Sausi, for the applicant, and Mr. Nyakoe, for the respondent, were in attendance. By then the respondent had not filed responses, and Mr. Nyakoe indicated that he was still taking instructions. To date no reply has been filed. As the respondent, although its Advocate was in court on 18th May 2026, and did not raise opposition of any kind to the said motion, despite its flaws, I shall treat it as valid, and I shall proceed to determine it on its merits, for the sake of delivering substantive justice to the parties, in line with Article 159 of the Constitution. 7. The applicant seeks an order of *mandamus*, to compel the respondent to pay a sum of Kshs. 130,294,360.13, which is the decretal sum, plus costs, pursuant to the judgement delivered on 24th July, 2025, in Milimani HCCC No. 8 of 2020. The decretal sum, as per the certificate of order against the government, is Kshs. 130,294,370.13, inclusive of costs and interest, which remains due and owing to date. 8. In *Republic vs. Attorney General & Another Ex parte James Alfred Koros* (2013) eKLR, the court stated that where a judgement has been obtained against the Government, and the Government fails to pay the decretal sum, an aggrieved party is entitled to seek an order of *mandamus* to compel the accounting officer to pay. 9. In *Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic* [1997] KECA 58 (KLR), it was said, with respect to the relief of *mandamus*, that: “The *order of mandamus is of 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*.” 1. Section 21(4) of the Government Proceedings Act expressly prohibits execution against the Government, thus leaving the *ex parte* applicant with no other appropriate remedy, except *mandamus*. It was stated, in *R(Regina) vs. Dudsheath, ex parte Meredith* [1950] 2 ALL ER 741, that: “*It is important to remember that “mandamus” is neither a writ of course nor a writ of right, but that it will be granted if the duty is in the nature of a public duty, and specially affects the rights of an individual, provided there is no more appropriate remedy. This court has always refused to issue a mandamus if there is another remedy open to the party seeking it. This is one of the reasons, no doubt, why, where there is a visitor of a corporate body, the court will not interfere in a matter within the province of the visitor, and especially this is so in matters relating to educational bodies such as colleges.”* 1. Similarly, in *Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza*[2012] eKLR,the court stated: “*An order of mandamus is a command issued by the High Court to compel the performance of a public duty which is imposed by statute, where the person or body has failed to perform that duty. Once a judgement is entered against the Government and a certificate or order is issued, the obligation to pay becomes a statutory duty.”* 1. The *mandamus* order issues to compel compliance with a statutory duty. The duty, in the context of these proceedings, would be settlement of the decreed amount by the court in the judgment in Milimani HCCC No. 8 of 2020. The duty to pay a decretal amount lies with the accounting officer responsible, according to the Government Proceedings Act, Cap. 40, Laws of Kenya. However, that duty is only incurred upon the applicant obtaining a certificate of order against the government, and serving it upon the Attorney General or the County Attorney, whichever is applicable, according to the Government Proceedings Act. Without that service, the duty to pay does not accrue, and it would be premature to seek for a *mandamus* order, for it would be seeking to enforce a duty which is yet to come into existence. 2. See *Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza* [2012] eKLR, *Five-Star Agencies Ltd & another vs. National Land Commission & 2 others* [2024] KECA 439 (KLR), *Evans James Misati vs. County Secretary, Chief Officer Ministry of Health County Government of Vihiga; Ex Parte: Evans James Misati* [2021] KEHC 13532 (KLR) and *Republic vs. Principal Secretary, Ministry of Interior and Coordination of National Government & another; Wang'ombe (Ex parte)* [2024] KEHC 4336 (KLR) 3. Had the duty to pay accrued in this case? The applicant claims to have had obtained and served a copy of the certificate of order against the government. The service was allegedly effected on the Advocates for the respondent. There is a letter on record, from the said Advocates, dated 28th July 2025, conveying that all-important court process to the Advocates for the respondent. I also see on record, a letter from the Advocates for the respondents, dated 30th July 2025, acknowledging receipt of that letter, and stating that the said letter and its enclosures, meaning the certificate of order against the government, had been forwarded to the respondent, and a response was awaited. Clearly, the said certificate had been brought to the attention of the respondent. 4. The applicant has satisfied the requisite conditions, for the making of the order of *mandamus*, by obtaining a decree and a certificate of Order against the Government, in Milimani HCCC No. 8 of 2020, and serving the same on 28th July 2025. 5. In the circumstances, I hereby allow the application by the applicant, dated 13th May 2026, and grant the order, sought in prayer 2 of the said motion. The applicant shall have the costs of the application. Orders accordingly. **DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 24TH DAY OF JULY 2026.** **W MUSYOKA** **JUDGE** **Mr. Abdirahman, Court Assistant.** **Advocates** **Mr. Sausi, instructed by Ochoki & Ochoki Associates, Advocates for the applicant.** **Mr. Nyakoe, instructed by Momanyi & Associates, Advocates for the respondent.**