https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9719

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **HIGH COURT JUDICIAL REVIEW NO. E013 OF 2025** **REPUBLIC ………………..…………………………………..… APPLICANT** **VERSUS** **COUNTY GOVERNMENT OF MACHAKOS …......... 1ST RESPONDENT** **THE CHIEF OFFICER FINANCE COUNTY** **GOVN OF MACHAKOS ……………..…….……….…… 2ND RESPONDENT** **THE C. O. ROADS, TRANSPORT & PUBLIC** **WORKS MACHAKOS COUNTY GOVT ………….…… 3RD RESPONDENT** **AND** **EX PARTE ………….……………………… TRANSAFRICA MOTORS LTD** **JUDGMENT** 1. The Ex-Parte Applicant brings these proceedings against the Respondent pursuant to the leave granted by this Court on 4th July, 2025. 2. The Ex-parte Applicant seeks an order of mandamus compelling the Chief Officer Finance of the 1st Respondent, and/or the Chief Officer Roads and Public works of the same County Government to pay to it a sum of Kshs. 35,180,543/= with interest at 14% p.a. from 22nd February 2021 as per the Certificate of Order issued on 21st February 2025 until payment in full. The Ex-parte Applicant also prays for the costs of this application. 3. The gravamen of these proceedings is that despite being served with the Certificate of Order, the Respondents have ignored it; that the only way to enforce it is by way of an order of mandamus as it is only then that attachment can ensue against the 1st Respondent which enjoys immunity against attachment. The Ex-parte Applicant has exhibited the following documents:- * ***Authority to file suit and swear affidavits dated 17th February, 2021,*** * ***The plaint in which judgment for the sum due is sought,*** * ***The judgment,*** * ***The certificate of order dated 21st February, 2025,*** * ***The affidavit of service.*** 1. The application was not opposed. 2. When the substantive motion first came for hearing on 27th November, 2025 there was no attendance by either side and so the hearing was adjourned to 12th March, 2026. Come the said date the Ex-Parte Applicant was represented by Mr. Waudo Advocate while the Respondent was represented by Miss Muthoka Advocate as holding brief for Miss Mutua. 3. Learned counsel for the Ex-parte Applicant canvassed the application orally and urged this court to allow it. Counsel submitted that there was a consent judgment entered on the principal amount on 25th April, 2023 and thereafter the court entered judgment on interest at 14% p.a. from 21st February 2025, in favour of the Ex Parte Applicant. Thereafter the Respondent was served with a Certificate of Order. 4. Counsel for the Respondent did not submit instead saying that her instructions were limited to applying for an adjournment. **Analysis and determination** 1. An order for mandamus is issued against the government to compel it to perform an act which it is obligated to perform, in this case to enforce the judgment and decree obtained against it by the Ex-Parte Applicant. A court will only issue an order of mandamus if it is demonstrated that the requirements under section 21 of the Government Proceedings Act have been fulfilled. In the case of **Republic – VS- Permanent Secretary Office of the President Ministry of Internal Security and another Ex-parte Nassir Mwandihi [2014] eKLR the court stated:** ***“….. It must be remembered that an application for an order compelling the Government to satisfy a decree is a very elaborate procedure. Before the court issues such an order, there must be proof that the provisions of the Government Proceedings Act have been complied with in respect of certificate of costs and certificate of order against the Government. After the issuance of the aforesaid documents, just like in any application for mandamus, there must be a demand for payment made by or on behalf of the decree holder to the relevant department seeking payment since in an application for an order of mandamus, the law as a general rule requires a demand by the applicant for action and refusal as a pre-requisite to the granting of an order, though there are exceptions to the rule ….*** ***The said elaborate procedure is further meant to give adequate notice to the Government to make arrangements to satisfy the decree. The procedure, in my view, is not meant to relieve the Government from meeting its statutory obligations to satisfy decrees and orders of the court”.*** 1. Similarly in the case of ***Republic –VS- Permanent secretary Ministry of State for Provincial Administration and Internal Security. [2012] eKLR*** the court held: ***“Unlike in other civil proceedings, where decrees for 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 provided the Government Proceedings Act. The only requirement which secures as a condition precedent to 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 secured on the Honorable 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 Honorable 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 approvals of Government expenditure in the financial year subsequent to which Government liability accrues.”*** 1. It is my finding that Ex-parte Applicant herein has met all the conditions precedent to grant of the order sought. The 1st Respondent was duly served with the decree and certificate of order against the Respondent, by way of email on March 12, 2025 but despite demand has defaulted in settling the decree. I am persuaded therefore, that this application is merited and it is allowed. 2. In the upshot a judicial review order of mandamus be and is hereby issued against the 2nd Respondent to satisfy the decree and certificate of order in the sum of Kshs. 35,180,543/58 plus the interest duly adjudged by this court in the judgment delivered in HCCA No. E004 of 2021. In default the Exparte Applicant shall be at liberty to move the court for enforcement orders against the Accounting Officer of the 1st Respondent. 3. The costs of this application assessed at Kshs. 50,000/= (fifty thousand) are also awarded to the Ex Parte Applicant. Orders accordingly. **Judgment signed, dated and delivered virtually through Microsoft Teams on this 25th Day of June, 2026.** **E. N. MAINA** **JUDGE** **In the presence of:** Mr. Waundo for the Exparte Applicant Miss Muthoka for Miss Mutua Advocate for Respondent Catherine - Court Assistant