https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9142

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **JUDICIAL REVIEW NO. E069 OF 2026** **REPUBLIC………………………………………………………………….…….…APPLICANT** **VERSUS** **THE COUNTY EXECUTIVE COMMITTEE MEMBER** **FOR FINANCE** **- COUNTY GOVERNMENT OF NAIROBI……………………......1ST RESPONDENT** **THE CHIEF OFFICER FINANCE/COUNTY TREASURER,** **NAIROBI CITY GOVERNMENT………………………….…………2ND RESPONDENT** ***EX PARTE*: GITUMA OTIENO & COMPANY, ADVOCATES** **JUDGMENT** 1. The substantive Motion is dated 12th March 2026, and it is for a *mandamus* order*,* directed at the respondents, to compel satisfaction of a decree, passed in Milimani HCJR No. E011 of 2023, together with costs and interests. According to the facts set out on the face of the Motion, and in the supporting affidavit, sworn by Mr. Michael Otieno, on 12th March 2026, the decree is for a sum of Kshs. 1,601,989.61. It is alleged that a decree and a certificate of order against the Government were processed, and served on the respondents. It is contended that that decree stands unsettled to date, hence the filing of the application. 2. Several documents are exhibited, in the affidavit, in support of the quest. These are the decree extracted in Milimani HCJR No. E011 of 2023, dated 18th March 2025; a certificate of order against the Government, dated 18th March 2025; and a copy of the ruling in Milimani HCJR No. E011 of 2023, delivered on 15th March 2025. 3. I cannot tell whether the respondents were served with the Motion, for I have seen, on the record, affidavits of service, sworn on 23rd March 2026 and 23rd April 2026, evidencing personal service, of mention and hearing notices, and submissions, but not of the application itself. However, I am satisfied that the respondents were aware of the proceedings, in view of service of those mention and hearing notices. 4. The respondents have come on record, by way of a memorandum of appearance, dated 30th April 2026, but they have not filed any responses. That is not altogether surprising, given that there is no proof that the application was ever served on them, hence they would have had no material upon which they could frame a response. 5. Directions were not taken, for canvassing of the application, but the *ex parte* applicant did file and serve written submissions. The said written submissions do no more than regurgitate the averments made in the supporting affidavit, that there was a decree and a certificate of order against government, which had been served. 6. The processes, for levying execution of court decrees and orders, as set out in the Civil Procedure Act, Cap. 21, Laws of Kenya, and the Civil Procedure Rules, are not available against the Government. The rationale for that position was given in *Kisya Investments Ltd vs. Attorney General & another* [2005] eKLR [2005] KEHC 3226 (KLR). Proceedings against the Government are governed by the Government Proceedings Act, Cap. 40, Laws of Kenya, in terms of how to initiate them, and what to do after a decree is obtained. The requirement is that, upon a decree or order being obtained against the Government, the party, desiring to have it satisfied or complied with, ought to obtain, from the court, a certificate of order against the Government, which should then be served. 7. The law, on satisfaction of orders and decrees against the Government, is section 21 of the Government Proceedings Act. It is section 21(1) which requires extraction of the certificate of order against the Government from the court record. Section 21(2) requires service of that certificate on the Attorney General or County Attorney, whichever the case. It is section 21(3) which directs the Accounting Officer, for the Government department concerned, to pay, to the person entitled or to his Advocate, the amount appearing by that certificate. It is section 21(4) which declares that no execution or attachment, or any other process of that kind, should be issued by the court, for enforcement of payment by the Government of any money or costs decreed or ordered by a court against it. See *Republic vs. Permanent Secretary Office of the President Ministry of Internal Security & another Ex-Parte Nassir Mwandihi* [2014] eKLR [2014] KEHC 6027 (KLR). 8. The accounting instrument, for the purpose of Government operations, which unlocks payment of money from the Government, in satisfaction of a court order or decree, is the certificate of order against the Government. This document is critical. Without it, the process of payment cannot be unlocked. Any person, desiring to be paid by Government, on account of a decree or order against it, must first obtain the said certificate. That certificate must then be served on the Attorney General; in case the decree or order is against the National Government; or the County Attorney, where the order or decree is against a County Government. The Government should only be expected to settle or satisfy the decree upon being notified of the same, through that certificate being appropriately served, in accordance with the law. See *Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza* [2012] eKLR and *Five Star Agencies Ltd & another vs. National Land Commission & 2 others* [2024] KECA 439 (KLR). 9. *Mandamus* is available where a statutory or public duty exists, and it issues to enforce that duty. See *Kenya National Examinations Council vs. Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others* [1997] eKLR. The duty, on the part of the Government, with respect to court orders and decrees, to pay or settle a court decree or order, accrues, not upon the order or decree being passed, but upon the accounting document, known as certificate of order against the Government, being served on the relevant Government official. *Mandamus* can only be obtained on the strength of service of the said certificate, for it is upon that service that the duty to act accrues. 10. The question, in this case then, is, whether the duty to pay or settle the decree herein has accrued. The answer to that question would depend on whether a certificate of order against the Government was obtained, and if it was, whether it was served on the relevant Government functionary. 11. My perusal of the affidavit, filed herein by the applicant, sworn on 12th March 2026, reveals that a certificate of order against the Government was obtained from the trial court, issued on 18th March 2025. The said certificate is a court instrument, in the same footing with a summons, a notice, an order or a decree. Such court instruments are served upon the concerned parties, through a court process server, either personally, or through substituted service, so that proof of service can be obtained. I have seen no affidavit of service, in respect of the said certificate of order against the Government, annexed to the said supporting affidavit, evidencing service of that all-important document on the respondents, or on any of the other relevant County Government officers. 12. However, other evidence, pointing to the said document or court process, that is the certificate of order against the Government, having been served on the relevant Government agent, for the purposes of these proceedings, could suffice, such as snail mail and email correspondence, with endorsements of receipt, and could be depended upon to satisfy the court on service. Ideally, though, this being court process, the most ideal mode of service, of this all-important accounting document, must be by way of ordinary service of court process, through the modes provided for under the Civil Procedure Act and the Civil Procedure Rules. 13. Do I have evidence that there was service of the certificate of the order against the Government, to trigger the duty, on the part of the respondents to settle the decree? I have closely perused the certificate of order against the Government, on record, dated 18th March 2025, and I see, on its face, a stamp of the Nairobi City County, pointing to its having been served on the Director Litigation, on 21st March 2025. I am, therefore, satisfied that the certificate of order against the Government was properly served. 14. The *mandamus* order issues to enforce the duty to pay, where that duty has accrued. The failure to serve that certificate is fatal, and evidence of service would lead to grant of the *mandamus* order. See *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). The certificate of order against the Government has, in this case, been served, hence the duty to pay has accrued. The *mandamus* order is available in this case, in the circumstances. It can, as a consequence, issue. 15. In the end, I hereby find that the application, by way of Motion, dated 12th March 2026, is merited, and I hereby allow it, with costs. Orders accordingly. **DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 26TH DAY OF JUNE 2026.** **W MUSYOKA** **JUDGE** **Mr. Abdirahman, Court Assistant.** **Advocates** **Mr. Otieno, instructed by Gituma Otieno & Company, Advocates for the *ex parte* applicant.** **Mr. Muyodi, Advocate for the respondents.**