https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9174

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION MISCALLANEOUS 10 OF 2018** **IN THE MATTER OF: AN APPLICATION FOR LEAVE TO ISSUE TO FILE AN APPLICATION FOR JUDICIAL REVIEW IN FORM OF ORDERS OF MANDAMUS** **AND** **IN THE MATTER OF: EXECUTION OF THE CERTIFICATE OF ORDER ISSUED ON 29TH JANUARY, 2025** **BETWEEN** **REPUBLIC ………………………………..………………………………………………………. APPLICANT** **VERSUS** **THE COUNTY EXECUTIVE COMMITTEE MEMBER, FINANCE & ECONOMIC AFFAIRS, COUNTY GOVERNMENT OF MERU ……………………………. 1ST RESPONDENT** **COUNTY SECRETARY, COUNTY GOVERNMENT OF MERU ………. 2ND RESPONDENT** **CHIEF OFFICER, FINANCE/COUNTY TREASURER,** **COUNTY GOVERNMENT OF MERU ……………………..……………………3RD RESPONDENT** **PROF. TOM OJIENDA & ASSOCIATES …………………………………EX PARTE APPLICANT** **RULING** **INTRODUCTION** 1. This is a judicial review application commenced pursuant to leave granted by the Court on 24th June 2025. The Ex Parte Applicant, Prof. Tom Ojienda & Associates Advocates, seeks an order of mandamus compelling the Respondents, being officials of the County Government of Meru, to satisfy a decretal sum of Kshs. 57,642,911.57 together with accrued interest thereon until payment in full. The Ex Parte Applicant further seeks that, in default of compliance, a Notice to Show Cause do issue requiring the Respondents to explain why contempt proceedings should not be commenced against them. 2. The record discloses that despite being served with the application and all relevant court processes, the Respondents neither entered appearance nor filed any replying affidavit, grounds of opposition, submissions, or any other pleadings in response thereto. Consequently, the application proceeded unopposed and the factual averments advanced by the Ex Parte Applicant remained wholly uncontroverted. **THE PETITIONER/EX PARTE APPLICANT’S CASE** 1. The Ex Parte Applicant's claim arises from legal services rendered to the **County Government of Meru in Petition No. 511 of 2015, County Government of Isiolo v Cabinet Secretary, Ministry of Interior & Coordination of National Government & Others**. Following the conclusion of the said proceedings, the Ex Parte Applicant filed an Advocate - Client Bill of Costs dated 15th March 2018. The Bill was taxed by the Deputy Registrar of the High Court at Nairobi in a ruling delivered on 14th December 2018 and allowed in the sum of Kshs. 35,046,245.00. Thereafter, a Certificate of Taxation dated 31st January 2020 was issued certifying the said amount as due and payable by the County Government of Meru. 2. The Ex Parte Applicant averred that the County Government of Meru was represented throughout the taxation proceedings by the firm of Munga Kibanga & Company Advocates and was therefore fully aware of the taxation proceedings and outcome. Following taxation, the Respondents sought enlargement of time to challenge the taxation through an application dated 11th October 2019. The Court, by orders issued on 27th May 2021, enlarged time and granted stay orders, following which the Respondents filed a Reference dated 3rd June 2021 challenging the decision of the Taxing Officer. However, the Reference was never prosecuted. Consequently, the Ex Parte Applicant moved the Court by an application dated 3rd April 2024 seeking dismissal of the Reference for want of prosecution. By a ruling delivered on 6th June 2024, the Court dismissed the Reference, thereby leaving the Certificate of Taxation intact, valid and unchallenged. 3. Subsequently, the Ex Parte Applicant filed an Application dated 23rd June 2020 pursuant to Section 51(2) of the Advocates Act seeking entry of judgment in terms of the taxed costs. In a ruling delivered thereafter, the Court considered the application, the supporting affidavit and annexures thereto, and found that the Bill of Costs had been taxed on 14th December 2018 in the sum of Kshs. 35,046,245.00 and that a Certificate of Taxation had been issued on 31st January 2020. The Court further found that the Certificate of Taxation had neither been altered nor set aside and that there was no challenge pending before any court. The Court also observed that although the Respondent had been served through its advocates, it neither filed any response nor attended court at the hearing of the application. Accordingly, the Application was allowed and judgment was entered in favour of the Ex Parte Applicant against the Respondent in the sum of Kshs. 35,046,245.00 as certified in the Certificate of Taxation dated 31st January 2020. The Court further awarded interest at court rates from 23rd June 2020 until payment in full together with costs of the application. 4. The Ex Parte Applicant contends that following entry of judgment, a decree was issued on 27th January 2025 and thereafter a Certificate of Order Against Government was issued on 29th January 2025 certifying the amount payable as Kshs. 57,642,911.57, comprising taxed costs of Kshs. 35,046,245.00 and accrued interest of Kshs. 22,596,666.57 calculated from 23rd June 2020 to 29th January 2025. 5. According to the Ex Parte Applicant, the Certificate of Order Against Government was duly served upon the Respondents together with demand and reminder letters dated 29th January 2025 and 21st March 2025 requiring settlement of the decretal sum. An Affidavit of Service sworn on 1st April 2025 was filed evidencing service of the Certificate of Order Against Government and the accompanying demands. The Ex Parte Applicant further relied upon an Affidavit of Service sworn by a duly authorized Process Server of the High Court of Kenya confirming that on 3rd February 2026, pursuant to instructions received from the Ex Parte Applicant's firm, he proceeded to the offices of Munga Kibanga Advocates situated at Munga Kibanga Place along Burlingham - Tigoni Road for purposes of serving a Ruling Notice dated the same day. The Process Server deponed that upon identifying himself and explaining the purpose of his visit, he served a clerk stationed at the firm's registry who accepted service by stamping and signing the front face of his copy of the document. The Process Server thereafter returned the document as duly served. 6. The Ex Parte Applicant asserts that despite service of the Certificate of Order Against Government, the demand notices, the ruling notice and other relevant court processes, the Respondents have failed, neglected and/or refused to satisfy the decretal sum. It is contended that the Respondents' conduct amounts to a failure to discharge a clear statutory duty imposed upon them by law. 7. The Ex Parte Applicant submits that all the legal prerequisites for the issuance of an order of mandamus have been met. Reliance was placed on ***Republic v Principal Secretary, Ministry of Internal Security & Another Ex Parte Schon Noorani & Another [2018] eKLR,*** wherein the Court adopted the principles in ***Apotex Inc. v Canada (Attorney General) and Dragan v Canada (Minister of Citizenship and Immigration)*** concerning the conditions necessary for the grant of mandamus. The Ex Parte Applicant further relied on ***Republic v County Secretary, Nairobi City County & 3 Others Koceyo & Co. Advocates (Ex Parte) [2020] eKLR*** for the proposition that satisfaction of decrees against public bodies lies upon the accounting officers charged with the statutory duty to effect payment. 8. The Ex Parte Applicant also cited ***Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex Parte Fredrick Manoah Egunza [2012] eKLR,*** wherein the Court held that mandamus is the appropriate and indeed the only mechanism available for enforcement of monetary decrees against Government entities after compliance with Section 21 of the Government Proceedings Act. Further reliance was placed on ***Shah v Attorney General (No. 3) [1970] EA 543*** for the principle that where no alternative remedy exists, mandamus ought to issue to ensure that justice is done. The Ex Parte Applicant additionally relied upon ***Republic v The Attorney General & Another Ex Parte James Alfred Koroso, High Court Judicial Review Miscellaneous Application No. 44 of 2012***, where the Court emphasized that a successful litigant ought not to be left holding a barren decree merely because execution proceedings are unavailable against Government entities. 9. The Ex Parte Applicant therefore contends that there exists a valid Certificate of Taxation, a judgment entered pursuant to Section 51(2) of the Advocates Act, a decree and a Certificate of Order Against Government, all of which remain unsatisfied. It is further contended that the Respondents, being public officers charged with the administration and financial management of the County Government, are under a statutory duty to satisfy lawful court decrees issued against the County Government. 10. The Ex Parte Applicant maintains that repeated demands for payment have yielded no response and that, in light of the prohibition against execution proceedings against Government entities under Section 21(4) of the Government Proceedings Act, an order of mandamus remains the only efficacious remedy available for enforcement of the decree and realization of the fruits of judgment. **ANALYSIS AND DETERMINATION** 1. I considered the Notice of Motion dated 2nd July 2025, the Supporting Affidavit, the annexures thereto, and the submissions and authorities relied upon by the Ex Parte Applicant. Notwithstanding that the factual substratum of the application is unchallenged, the Court remains under a duty to determine whether the Ex Parte Applicant has satisfied the applicable legal threshold warranting the grant of the judicial review reliefs sought. 2. The issue for determination is whether the Ex Parte Applicant has established a legal basis for the grant of an order of mandamus compelling the Respondents to satisfy the decretal sum of Kshs. 57,642,911.57 together with interest. 3. The underlying claim is not in dispute. It arises from taxed costs, judgment entered under section 51(2) of the Advocates Act, and a Certificate of Order against Government duly issued and served. The only question is whether a corresponding public duty exists capable of enforcement by mandamus. 4. It is now settled law that execution against the Government is prohibited by virtue of Section 21(4) of the Government Proceedings Act. The rationale underpinning this statutory immunity was succinctly articulated in ***Kisya Investments Ltd v Attorney General & Another [2005] eKLR*** where the Court observed: ***“No government can possibly survive such an onslaught… the government and therefore the state operations will ground to a halt and be paralyzed… leading to chaos, anarchy and breakdown of the Rule of Law.”*** 1. The foregoing statutory protection, however, does not absolve the Government of its obligation to satisfy lawful decrees and court orders. It merely precludes the use of ordinary execution proceedings against the State. In recognition of this limitation, Section 21 of the Government Proceedings Act establishes an alternative statutory mechanism for the enforcement of decrees against Government entities. Under that framework, the issuance and service of a Certificate of Order against the Government gives rise to a mandatory statutory duty on the part of the relevant accounting officer to settle the decretal sum together with any lawful interest accruing thereon. 2. Section 21(3) of the Government Proceedings Act (Cap. 40) provides: **“If the order provides for the payment of any money or costs by the Government, the accounting officer for the Government department concerned shall, subject to the provisions of this section, pay to the person entitled or to his advocate the amount appearing by the order to be due to him together with any interest lawfully due thereon.”** 1. Complementing the foregoing provision, Section 21(4) stipulates: **“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…”** 1. The effect of the foregoing provisions is that, while execution proceedings are unavailable against the Government, the obligation to satisfy a lawful decree subsists and crystallizes upon the issuance and service of a Certificate of Order against the Government. The statutory scheme therefore substitutes the ordinary process of execution with a mandatory duty imposed upon the accounting officer concerned. 2. This position has been consistently affirmed by the courts. In ***Republic v Permanent Secretary, Office of the President, Ministry of Internal Security & Another Ex Parte Nassir Mwandihi [2014] eKLR,*** the Court observed that: ***“The elaborate procedure under section 21 is not intended to relieve Government entities of their obligation to satisfy decrees and court orders…”*** 1. The Court further emphasized that once the requisite certificate has been issued and duly served, the statutory obligation to effect payment arises and becomes enforceable through the appropriate public law remedies. 2. Similarly, in ***Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex Parte Fredrick Manoah Egunza [2012] eKLR,*** the Court held: ***“The issuance of a Certificate of Order against the Government constitutes the critical statutory condition precedent… and once issued, the accounting officer is obligated to honour the certificate.”*** 1. The Ex Parte Applicant has demonstrated full compliance with the statutory framework: taxation, judgment under section 51(2) of the Advocates Act, extraction of decree, issuance and service of Certificate of Order against Government, and demand for payment. No appeal, stay, review, or lawful impediment has been shown. 2. The governing principles on mandamus are settled. In ***Republic v Kenya National Examinations Council Ex Parte Gathenji & 8 Others, Civil Appeal No. 234 of 1996***, the Court of Appeal held: ***“The order of mandamus is of a most extensive remedial nature… directed to compel performance of a public duty imposed by statute… It issues where there is a specific legal right and no specific legal remedy for enforcing that right…It may issue even where there is an alternative remedy, if that remedy is less convenient, beneficial and effectual.”*** 1. The Court further clarified that mandamus lies where a public authority has failed or refused to perform a statutory duty to the detriment of a person with a corresponding legal right. 2. The same Court, adopting Halsbury’s Laws of England (4th Ed., Vol. 1, para. 89), affirmed that mandamus is designed to enforce public duties and remedy defects of justice where a legal right exists but lacks effective enforcement. 3. The necessity of the remedy in Government debt enforcement was underscored in ***Republic v Attorney General & another Ex parte James Alfred Koroso [2013] eKLR.*** where the Court stated: **“A decree-holder who is barred from executing against Government has no other option of realizing the fruits of judgment… he would be left babysitting his barren decree.”** 1. From the foregoing authorities, the applicable legal position is clear. Where the statutory duty arising under Section 21 of the Government Proceedings Act has crystallised upon the issuance and service of the requisite certificate, and the responsible public authority fails to satisfy the decree as required by law, an order of mandamus is available to compel the performance of that public duty. 2. In the present matter, the statutory conditions precedent have been satisfied. The Respondents’ obligation to satisfy the decretal sum is therefore not discretionary but imposed by law. 3. The jurisprudence emerging from ***Kisya Investments, Nassir Mwandihi, Fredrick Manoah Egunza, Gathenji,*** and ***Koroso*** converges upon a singular and well-settled principle, the statutory prohibition against execution does not absolve the Government of its obligation to honour lawful decrees and court orders it merely substitutes the ordinary process of execution with a distinct statutory mechanism for enforcement. 4. In the present case, the Respondents' continued failure to satisfy the decretal sum, notwithstanding compliance with all the statutory prerequisites, constitutes a breach of the duty imposed under Section 21 of the Government Proceedings Act and a corresponding infringement of the Ex Parte Applicant's accrued legal right. In the circumstances, no other efficacious remedy is available to the Ex Parte Applicant. 5. The Court is consequently satisfied that the Ex Parte Applicant has established a clear legal right to the performance of the statutory duty in question that the Respondents are under a corresponding legal obligation to discharge that duty that all conditions precedent have been duly fulfilled and that the Respondents have failed, neglected, or refused to perform the obligation imposed upon them by law. 6. Accordingly, the Court is satisfied that the Ex Parte Applicant has met the requisite legal threshold for the grant of an order of mandamus and is consequently entitled to the relief sought. 7. In the premises, the Notice of Motion dated 2nd July 2025 is found to be meritorious and is hereby allowed, with the result that an order of mandamus shall issue as prayed. 8. For the foregoing reasons, and having found merit in the Notice of Motion dated 2nd July 2025, the Court hereby makes the following orders: **a. An order of mandamus be and is hereby issued compelling the 1st, 2nd and 3rd Respondents, in the discharge of their respective statutory mandates and responsibilities within the County Government of Meru, to forthwith satisfy the decretal sum of Kshs. 57,642,911.57 together with all lawful interest accruing thereon until payment in full** **b. The Ex Parte Applicant shall have the costs of these proceedings.** **c. The Deputy Registrar shall ensure compliance with the provisions of Sections 4(4) and 23(3) of the Limitation of Actions Act, Cap. 22, Laws of Kenya.** Orders accordingly. File closed accordingly. **DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 10TH DAY OF JUNE 2026.** **…………………………………………………..** **BAHATI MWAMUYE MBS** **JUDGE**