https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11083

Republic v County Executive Committee Member, Finance & Economic Affairs, County Government of Tana River & 2 others; Ojienda (Ex parte Applicant) (Judicial Review Miscellaneous Application E055 of 2025) [2026] KEHC 11083 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 11083 (KLR) Republic of Kenya In the High Court at Garsen Judicial Review Miscellaneous Application E055 of 2025 JN Njagi, J July 16, 2026 IN THE MATTER OF: APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS AND IN THE MATTER OF: EXECUTION OF CERTIFICATE OF ERDER ISSUED ON 15TH SEPTEMBER, 2025 Between Republic Applicant and The County Executive Committee member, Finance & Economic Affairs, County Government of Tana River 1st Respondent County Government Tana River 2nd Respondent The Chief Officer, Finance/County Treasurer, County Government of Tana River 3rd Respondent and ProfTom Ojienda Ex parte Applicant Ruling 1.The Ex parte Applicant has filed a Notice of Motion application dated 25th November 2025 seeking that this court do issue an order of mandamus compelling the Respondents to pay to the Applicant the decretal sum of Ksh.2,355,648/= inclusive of interest at 14% p.a, from 1st March 2025 to 15th September 2025 until payment in full. That in default thereof, Notice to show cause do issue against the Respondents to show cause why they should not be cited for being in contempt of court. 2.The application is premised on grounds stated on the face of the application and supported by the affidavit of the Ex Parte Applicant. The grounds thereof are that the Ex Parte Applicant has obtained judgment decree against the Respondents for legal services rendered in the sum of Ksh.2,355,648.96/= as per the Certificate of Order against the Government dated 15th September, 2025. That the Ex parte applicant proceed to serve the decree on the Respondents requiring them to settle the decretal sum and they have failed and or refused to settle the same. The Ex parte Applicant there upon sought and obtained leave to file an application for mandamus to compel the Respondents to settle the amount owing. 3.The Respondents made a response to the application through the replying affidavit of the Chief Officer/County Treasurer, County Government of Tana River, Fredrick Kofa Bungulu, in which he states that they have never disputed the claim, the decree and the Certificate of Order against the Government dated 15th September 2025 in favour of the Ex parte applicant. However, that the settlement of the decretal sum has been delayed by reason of administrative audit verification hurdles emanating from the Office of Auditor-General. That it is not correct as stated by the Ex parte Applicant that the Respondents have willfully and expressly refused to settle the outstanding sums. That they are willing to settle the decretal sum upon completion of the audit by the Auditor-General. That the time that has lapsed since the issuance of the Certificate of Order against the Government on 15th September 2023 cannot in the circumstances be characterised as unreasonable delay. 4.It was deposed that any payment effected by the Respondents prior to and in defiance of the said audit verification would expose the Respondents to the risk of personal surcharge under section 51 of the Public Audit Act, 2015, criminal sanction under section 196 and 197 of the Public Finance and Management Act and adverse audit findings that would cripple the operations of the county Government. 5.It was submitted that courts have recognized that budgetary and audit-verification considerations are legitimate factors to be taken into account in framing any order of mandamus that may issue against a county government. The Respondents cited the case of Republic v County Secretary, County Government of Meru & 4 others; Joseph Mwirigi Kabura t/a Mwirigi Kabura & co. Advocates (Ex parte Applicant) (2025) KEELC 3804 (KLR) where the court held that while budgetary constrains do not insulate public officials from their duty to settle decretal sums, they are nonetheless a factor to take into account when framing any order of mandamus. The court was invited in the event that it is satisfied that the threshold for the grant of an order of mandamus has been met to fashion any order it may issue in a manner that takes into account the audit verification process pending before the Auditor-General and the budgetary cycle of the County Government of Tana River. 6.It was deposed that in view of the fact that an order of mandamus is a discretionary remedy and having regard to bona fide engagement with the Auditor-General the court ought to exercise the discretion in favour of the Respondents by declining to grant the orders sought at this stage or alternatively postponing its operative date to a reasonable time after the conclusion of the audit-verification process. The court was asked to dismiss the application or alternatively an order of mandamus be deferred to a date subsequent to the conclusion of the audit-verification process. Submissions 7.The Ex Parte Applicant submitted that mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and is a remedy that controls procedural delays. That it is meant to compel a person or body of persons who have failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. 8.It was submitted that the test of an order of mandamus was outlined by the court in the case of Apotex Inc. vs Canada (Attorney General) and Dragan v Canada Minister of Citizenship and Immigration as cited in Republic v County Secretary, County Government of Meru & 4 others; Joseph Mwirigi Kabura t/a Mwirigi Kabura & co. Advocates (Exparte Applicant) (2025) as follows:(i)There must be a public legal duty to act;(ii)The duty must be owed to the Applicants;(iii)There must be a clear right to the performance of that duty, meaning that:a.The Applicants have satisfied all conditions precedent; andb.There must have been:i.A prior demand for performance;ii.A reasonable time to comply with the demand, unless there was outright refusal; andiii.An express refusal, or an implied refusal through unreasonable delay;iv.No other adequate remedy is available to the Applicants;v.The Order sought must be of some practical value or effect;vi.There is no equitable bar to the relief sought;vii.On a balance of convenience, mandamus should lie 9.It was submitted that the Respondents have a legal duty to settle the decretal sum by virtue of their roles and functions as chief officers of the county government. Reliance was placed in Republic v Permanent Secretary, Ministry of State for Provincial Administration and internal Security Ex parte Frdrick Manoah Egunza (2012) eKLR where it was stated that:Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act.The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. 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. 10.It was submitted that since the Respondents refused to pay the decretal sum the only way to recover the debt is by way of an order of mandamus. Reliance in this respect was placed in the case of Shah v Attorney General (No. 3) Kampala HCMC No.31 of 1969 (1970) EA543 where it was held:….Whereas mandamus may be refused where there is another appropriate remedy, there is no discretion to withhold mandamus if no other remedy remains. When there is no specific remedy, the court will grant a mandamus that justice may be done. The construction of that sentence is this: where there is no specific remedy and by reason of the want of specific remedy justice cannot be done unless a mandamus is to go, then mandamus will go… In the present case it is conceded that if mandamus was refused, there was no other legal remedy open to the applicant. 11.Also cited was High Court Judiciary Review Misc. Application No. 44 of 2012; Republic v v Attorney General &another ex parte James Alfred Koroso, where the court stated that:In the present case the ex parte applicant has no other option of realising the fruits of his judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that he has been awarded is realised. Unless something is done he will forever be left baby sitting his barren decree. This state of affairs cannot be allowed to prevail under our current Constitutional dispensation in light of the provisions of Article 48 of the Constitution which enjoins the State to ensure access to justice for all persons. 12.It was submitted that the application has met all the conditions precedent to granting of an order of mandamus. That there is no other remedy available to the Ex patre Applicant to compel settlement. The Ex Parte applicant urged the court to grant the orders sought. Analysis and determination 13.I have considered the application and replying affidavit by Chief Officer/County Treasurer of the 3rd Respondent, County Government of Tana River. The Respondents are not disputing the claim. Their only bone of contention is that the condition for the grant of mandamus of the requirement of an express refusal or an implied refusal through unreasonable delay as articulated in the case of Apotex Inc. v Canada (supa) have not been met. That the reason why payment has not been effected is because there is a pending audit-verification process initiated by the Office of the Auditor-General. They urged the court to dismiss the application and not to grant the orders sought or in the alternative to postpone the issuance of the orders till after the conclusion of the audit-verification process by the Office of the Auditor-General. 14.The Ex parte Applicant on the other hand submits that they have met all the conditions precedent for grant of orders of mandamus. That they have no other remedy available to them to compel payment other than an order of mandamus. They urged the court to grant the orders sought. 15.Having considered the evidence placed before me, I find that the application has met the conditions precedent for issuance of orders of mandamus. The Ex parte applicant has already obtained a decree against the Respondents which decree is not denied and has not been satisfied. The Respondents were served with the demand to pay in October 2025 and up to date they have not settled the claim. More than eight months have now lapsed without payment being made. That in my view is an implied refusal to pay. The fact that the 3rd Respondent has an audit-verification process pending before the Office of the Auditor General is not reason for delayed payment. It was the duty of the Respondents to factor in the payment in their annual budget when they sought for services from the Ex parte applicant. 16.In the premises, I find the Ex parte Applicant`s Notice of Motion dated 25th November 2025 to be merited. However, I do take judicial Notice that the government`s financial year has just started. In my view, it would be prudent to give the Respondents time to settle the claim, failure to which Notice to Show cause should issue. 17.Consequently, the Notice of Motion dated 25th November 2025 is allowed in the following terms:1.An order of mandamus do and is hereby issued compelling the Respondents to satisfy the decretal sum herein in the sum of Ksh.2,355,648.96/= with interest at court rates from date of judgment till payment in full.2.That the decretal sum be settled within three months from the date hereof and in default Notice to Show Cause to issue.3.The Ex parte Applicant to have the costs of the application.4.Similar orders to issue in the respective sums claimed in the following matters:1.Garsen High Court JR Misc. Application No. E56 of 20225 - Ksh.11,377,314.93/=2.Garsen High Court JR Misc. Application No. E057 of 2025 – Ksh.1,161,.381.38/=, and3.Garsen High Court JR Misc. Application No. E058 of 2025 – Ksh.4,819,836.35/=Orders accordingly. DELIVERED, DATED AND SIGNED AT GARSEN THIS 16TH DAY OF JULY, 2026J.N. NJAGIJUDGEIn the presence of:Miss Ojil HB for Miss Msando for Ex parte ApplicantMiss Atieno HB for Mr. Muga for RespondentsCourt Assistant - Rahma