https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9992

Republic v County Executive Finance and Economic Planning & another; Muthiga (Ex parte Applicant) (Judicial Review E239 of 2025) [2026] KEHC 9992 (KLR) (Judicial Review) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9992 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E239 of 2025 TW Ouya, J July 2, 2026 Between Republic Applicant and County Executive Finance And Economic Planning 1st Respondent The Honourable Attorney General 2nd Respondent and Hosea Mwangi Muthiga Ex parte Applicant Ruling 1.Pursuant to leave granted by the court on 22nd July 2025, the ex parte Applicant commenced judicial review proceedings against the Respondents seeking orders of mandamus for the payment of the sum of Kshs.140,341.57 and costs taxed at Kshs.43,100.00 all together with interest from 17 December 2024 until payment. The Exparte Applicant also sought costs and any other orders as the court may deem just and expedient to grant. The application does not state against whom these orders have been sought. 2.In the Supporting Affidavit to the application sworn on 24th July 2025, the ex parte Applicant contends that he obtained judgement against the 1st Respondent on 17th December 2024 but despite numerous reminders, the 1st Respondent has failed, refused and or neglected to settle the decretal amount and costs thereof. He further avers that he has adhered to the set procedure of executing against the county government and applied to the court for a certificate of order and served it upon the office of the County Solicitor. 3.Upon being served the judicial review application, the 2nd Respondent objected to its inclusion in these proceedings by filing an application dated 13th November 2025 seeking to be struck out of the judicial review application on the grounds that it is not a necessary party. The 2nd Respondent further avers that the judicial review application does not disclose any claim against the 2nd Respondent and its inclusion has no legal basis or benefit to the proceedings. The 2nd Respondent also asserts that there is no nexus between it and the Applicant’s case. 4.In further support of the application, Ruth Wamuyu an advocate of the High Court practicing in the office of the 2nd Respondent swore an affidavit on 13th November 2025 asserting that the claim in the judicial review application lies against the county government of Nairobi which is a distinct and autonomous entity from the national government. 5.The 2nd Respondent also filed submissions dated 13th November 2025 where it is argued that under Articles 6(2) and 176 of the Constitution of Kenya, 2010, county governments are established as distinct and independent levels of government, exercising devolved functions and that any claim or liability from acts or omissions of a county government cannot, in law, be imputed to the national government. It is the 2nd Respondent’s case that it has no administrative, operational, or financial control over the County Government of Nairobi in the discharge of its devolved functions. 6.The 2nd Respondent further submits that Article 156 of the Constitution establishes the Office of the Attorney General and sets out its functions to include representation of the national government in court or in any other legal representation which the national government is a party, other than criminal proceedings. Reliance is also placed on Section 5(1)(i) of the Office of the Attorney General Act No. 49 of 2012 in support of the argument that the 2nd Respondent is not a necessary party in a claim against a county government. 7.The ex-parte Applicant filed submissions dated 2 April 2026 in opposition to the 2nd Respondent’s application. It is the ex- parte Applicant’s contention that under Article 156(6) of the Constitution, the Attorney general is mandated to promote, protect and uphold the rule of law and defend the public interest. This constitutional duty, the ex-parte Applicant argues, extends to ensuring that court orders are complied with by all state organs, including county governments. The ex-parte Applicant also argues that failure by a state organ to comply with court orders undermines the rule of law and that the Attorney general cannot abdicate responsibility in proceedings that seek to compel compliance with lawful court decrees. The ex-parte Applicant, therefore, urges the court to find that the 2nd Respondent is a necessary party in these proceedings. 8.The Judicial Review Application before the court stems from the enforcement of orders and decrees against government pursuant to the Government Proceedings Act. Under the Government Proceedings Act, a party who holds an order or decree against government cannot execute directly against government by dint of Section 21(4) of the said Act which provides as follows:“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, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.” 9.It therefore follows that a party who holds an order or decree against government can only seek satisfaction of that order or decree through compelling the officer responsible for the satisfaction through seeking an order of mandamus. In Republic v The Attorney General & Another ex-parte James Alfred Koroso, Odunga, J (as he then was) held as follows in this regard:“…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…In seeking an order for mandamus the applicant is seeking, not relief against the Government, but to compel a Government official to do what the Government, through Parliament, has directed him to do. [Emphasis added] 10.While an order of mandamus compels a public officer to perform a certain function and in this case the satisfaction of a decree against government, a failure to obey the order attracts sanctions from the Court that issued the order as failure to do that which the court compels is tantamount to contempt of court. As further observed by Odunga, J (as he then was) in Republic v. The Attorney General & Another Exparte James Alfred Koroso:“Where therefore a public officer declines to perform the duty after the issuance of an order of mandamus, his/her action amounts to insubordination and contempt of Court hence an action may perfectly be commenced to have him cited for such. Such contempt proceedings are no longer execution proceedings but are meant to show the Court’s displeasure at the failure by a servant of the state to comply with the directive of the Court given at the instance of the Republic, the employer of the concerned public officer and to uphold the dignity and authority of the court.” 11.The above background is necessary in understanding the contention between the ex-parte Applicant and the 2nd Respondent. While the ex-parte Applicant submits that the 2nd Respondent is a necessary party, the 2nd Respondent contends that there is no nexus between the orders being sought and its mandate. Considering that the present suit seeks compulsion orders for the satisfaction of a decree and further considering that the failure to obey such orders, if granted, attracts this court’s sanction powers, it is necessary to be satisfied that the party against whom the orders of mandamus are sought has the powers to perform that which the orders seek. 12.The 2nd Respondent is established Article 156 (1) of the Constitution with a mandate of being the principal legal adviser to the Government as well as representing the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings. The mandate of the 2nd Respondent is further provided for under Section 5 of the Office of the Attorney General Act. All the roles under the Constitution and the Office of the Attorney General’s Act are performed for the national government. 13.The gist of the contention in this case is whether the 2nd Respondent is properly sued in a claim for satisfaction of a decree against a County Government. 14.The Constitution of Kenya 2010 under Article 6(1) establishes governments at the national and county levels as distinct and inter-dependent entities. It follows then that the 2nd Respondent does not have any role on matters within the exclusive mandate of counties with the exception of where the law allows for consultation. Equally, while the Office of the Attorney General has been established under the Constitution and roles spelt out in an Act of Parliament, Parliament has also established the Office of the County Attorney through Act no. 14 of 2020. The functions of this office under Section 7 of the Office of the County Attorney Act include representing the county executive in court and advising departments in the county executive on legislative and other legal matters. Counties, therefore, are well equipped through this office on legal matters. 15.Further, considering the nature of the orders sought in this case as explained above, any such orders issued against the 2nd Respondent would be in vain as the office of the 2nd Respondent does not have a mandate to advise the 1st Respondent on satisfaction of orders issued against the county. Besides, looking at the pleadings, the ex-parte Applicant has not sought any order against the 2nd Respondent. 16.The upshot of the above analysis is that the 2nd Respondent is struck out of these proceedings. There shall be no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 2ND DAY OF JULY, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Ms. Kimathi for Exparte ApplicantMs. Magero for RespondentNyabuto – Court Assistants