https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3521

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCMISC NO. E091 OF 2021** **IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS** **AND** **IN THE MATTER OF: EXECUTION OF THE CERTIFICATE OF ORDER ISSUED ON 13TH JUNE 2025** **BETWEEN** **REPUBLIC....….…………..................................................................APPLICANT** **–VERSUS-** **THE COUNTY EXECUTIVE COMMITTEE** **MEMBER FINANCE & ECONOMIC AFFAIRS,** **NAIROBI CITY COUNTY........................................................1ST RESPONDENT** **COUNTY SECRETARY, NAIROBI CITY COUNTY……........….2ND RESPONDENT** **CHIEF OFFICER, FINANCE/COUNTY** **TREASURER, NAIROBI CITY COUNTY.......…………………….3RD RESPONDENT** **AND** **PROF. TOM OJIENDA & ASSOCIATES…......................EX-PARTE APPLICANT** **JUDGMENT** 1. Pursuant to leave granted on 1st August, 2025 the ex-parte applicant filed the substantive notice of motion dated 6th August 2025 expressed to be brought under **Order 53 Rule 3** of the **Civil Procedure Rules** seeking the following orders:- 2. ***That this honourable court be pleased to issue an order of mandamus compelling the respondents to pay to the applicant forthwith and without delay, the decretal sum delineated hereunder together with the accrued interest until payment in full being the sum of Kshs.590,249.76/.*** 3. ***That in default, notice to show cause do issue against the respondents to show cause why they should not be cited for being in contempt of court orders.*** 4. ***That the costs of this application be borne by the respondents.*** 5. The application is premised on the grounds on its face. It is further supported by the affidavit of Prof Tom Ojienda SC sworn on even date. The learned Senior Counsel deposed that on 30th April, 2024 judgment was entered in favour of the exparte applicant in the sum of Kshs.590, 249.76/- and a decree was issued to that effect dated 13th June, 2025. Thereafter, service of the decree was effected upon the respondents and followed up with reminders which yielded no fruit. He went on to depose that despite being aware of the sums due, the respondents have refused to settle the decretal sum thus necessitating filing of this application. 6. The respondents did not file their response to this application. This court directed that the application be canvassed through submissions. By the time of writing this ruling, neither of the parties had filed their written submissions. 7. The circumstances under which judicial review order of mandamus are issued were discussed in the case of [**Republic v Kenya National Examinations Council Ex Parte Gathenji & 8 Others**](https://new.kenyalaw.org/akn/ke/judgment/keca/1997/58) **Civil Appeal No 234 of 1996**, where the Court of Appeal pronounced itself as follows:- ***“The order of mandamus is of most extensive remedial nature and is in form, of 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."...These principles mean that an order of mandamus compels 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. **Section 21 (3)** of the **Government Proceedings Act** on provides:- ***“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.”*** 1. Pursuant to the judgment entered on 30th April, 2024 the ex-parte applicant was issued with a decree dated 13th June, 2025 and a certificate of order against the county government dated 13th June, 2025. The same was served upon the respondents, and despite the said service, which is undisputed, the same remains unpaid. This court is thus satisfied that the *exparte* applicant has demonstrated compliance with **Section 21 (3)** of the **Act**. 2. In the case of **Republic vs. Permanent Secretary Ministry of State for Provincial Administration and Internal Security [2012] eKLR**, it was held as follows:- ***“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. This provision does not condition payment to budgetary allocation and parliamentary approval of government expenditure in the financial year subsequent to which government liability accrues.”*** 1. From the above, I find merit in the notice of motion dated 6th August, 2025 and the same is hereby allowed as follows:- 2. ***An order of mandamus is hereby issued compelling the respondents to pay to the ex-parte applicant forthwith and without delay, the decretal sum of Kshs.590,249.76/.*** 3. ***In default, notice to show cause do issue against the respondents to show cause why they should not be cited for being in contempt of court orders.*** 4. ***The ex-parte applicant is awarded costs of this motion.*** It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY** **THIS 11TH DAY OF JUNE, 2026.** **HON. MBOGO C.G.** **JUDGE** **11/06/2026.** ***In the presence of:*** *Mr. Benson Agunga - Court assistant* *Ms. Ojil holding brief for Ms. Msando for the Ex-parte Applicant*