https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4676

Republic v County Government of Mombasa CECM, Finance & Economic Affairs & 5 others; Miller and Company Advocates (Ex parte Applicant) (Judicial Review E012 of 2025) [2026] KEELC 4676 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEELC 4676 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Judicial Review E012 of 2025 JO Olola, J July 23, 2026 IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW FOR ORDERS OF MANDAMUS AND IN THE MATTER OF: MOMBASA ELCL MISCELLANEOUS APPLICATION NO. E040 OF 2024 Between Republic Applicant and County Government of Mombasa CECM, Finance & Economic Affairs 1st Respondent Mombasa County Chief Officer, Revenue Administration 2nd Respondent Mombasa County 3rd Respondent The County Secretary, Mombasa County 4th Respondent County Attorney, Mombasa County 5th Respondent Chief Officer, Finance/County Treasurer Mombasa Court 6th Respondent and Miller And Company Advocates Ex parte Applicant Ruling 1.By the Chamber Summons dated 1st October 2025, Miller and Company Advocates (the Ex-parte Applicant) sought leave to apply for an order of mandamus against the Respondents. The Court issued leave to the Ex-parte Applicant which proceeded and filed Notice of Motion dated 4th November 2025 seeking the following orders;1.That the Honourable Court be pleased to grant an order of mandamus directed at the Respondents and compelling them jointly and severally to pay within Fourteen (14) days to the Ex- Parte Applicant, Miller and Company Advocates, the sum owing on account of the judgment entered on 30th July, 2025 and Certificate of Order dated 1st September, 2025 in Environment and Land Court Miscellaneous Application No. E040 of 2024 together with taxed costs and interest accruing on the judgment debt;2.That any further relief that the Court deems fit in the interest of justice; and3.That the costs of the application be provided for. 2.The application anchored on the grounds on its face, the Supporting Affidavit sworn on 4th November 2025, the Statutory Statement and the Verifying Affidavit of Cecil G. Miller both dated 1st October 2025. The Ex-Parte Applicant’s case is that on 11th January 2022, the Respondents instructed them to act for the 1st Respondent in Mombasa ELC Civil Appeal No. 16 of 2020, whereof judgment was entered in favour of the Applicant for the sum of Kshs. 406,212.60 but the Respondent has failed to settle the amount. 3.The 1st Respondents are opposed to the application. In a Replying Affidavit sworn by the 1st Respondent’s County Solicitor, Murtaza Tajbhai, the Respondents aver that the 2nd Respondent has the statutory mandate to authorize expenditure from the County Treasury and that as such the 1st, 3rd , 4th , 5th and 6th Respondents have been wrongly enjoined in these proceedings. The Respondents further aver that the application is misconceived, premature and fatally defective since there is no evidence that the Respondents have refused to satisfy the decretal amount and costs awarded in ELC Miscellaneous No. E040 of 2024. 4.The Respondents further aver that an order of mandamus cannot issue since Order 29 Rule 3 of the Civil Procedure Rules 2010, as read with Section 21 of the Government Proceedings Act require personal service of a Certificate of Order against the Government and a demand for settlement upon the County Executive Committee Member of Finance as the County Treasury’s Accounting Officer and the 2nd Respondent herein. 5.The Respondents avers that the decretal sum of Kshs. 406,212.60 was not included in the current financial year’s budget because the 2nd Respondent had not been served with the Certificate of Order and as such could not lawfully plan or appropriate funds for its payment. It is the Respondent’s case that the same can only be made once it is factored into the forthcoming budget cycle and approved by the County Assembly. 6.I have carefully perused and considered the application as well as the response thereto. I have similarly perused and considered the submission and authorities placed before me by the Learned Advocates representing the parties. 7.By their application before Court, Miller and Company Advocates pray for an order of mandamus to issue compelling the six (6) Respondents, jointly and severally, to pay the decretal sum of Kshs. 406,212,60 together with taxed costs and accruing interest, pursuant to the judgment entered on 30th July 2025 and the Certificate of Order dated 1st September 2025 in Mombasa ELC Miscellaneous Application No. E040 of 2024. 8.In their response to the application, the Respondents do not deny that the Applicant Law Firm was instructed as such and that a fee note was submitted which was later taxed at Kshs 406,212.60. It is the Respondent’s case that it is only the 2nd Respondent who has the statutory mandate to authorize expenditure from the County Treasury and that as such, the 1st, 3rd 4th, 5th and 6th Respondents have wrongly been enjoined in these proceedings. 9.The Respondents further aver that the order of mandamus cannot issue in the circumstances herein as the Certificate of Order against the County Government had not been personally served upon them and a demand for settlement made against the 2nd Respondent as the County’s Accounting Officer. 10.As it were, Section 103 (3) of the Public Finance Act provides as follows:“103(1)There is hereby established for each County Government, an entityy to be known as the County Treasury.(2)The County Treasury shall comprise;(a)The County Executive Committee member for Finance.(b)The Chief Officer; and(c)The department or departments of the county treasury responsible for financial and fiscal matters.(3)The county executive committee member for finance shall be the head of the county treasury.” 11.Arising from the foregoing, it was apparent that the 2nd Respondent is the 1st Respondent’s Accounting Officer and that the joinder of the Chief Officer Revenue Administration, the County Secretary and the County Attorney Mombasa may not have been necessary. 12.That notwithstanding, I was not persuaded that any such misjoinder could defeat the claim as instituted. That much is clear from my reading of Order 1 Rule 9 of the Civil Procedure Rules which provides thus;“9.Misjoinder and non-joinderNo suit shall be defeated by reason of the misjoinder or non- joinder of parties. And the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” 13.At any rate, granted the nature of the orders sought herein, it was apparent that the Ex -Parte Applicant was only intent on giving notice of this dispute to all departments of the 1st Respondent that play key administrative roles in facilitating compliance with Court Orders and the Respondents had not suffered any prejudice as a result of such joinder. 14.The Respondents have further maintained that the order of mandamus was not available to the Ex-Parte Applicant in the circumstances herein. 15.Black’s Law Dictionary, 11th Edition defines ‘madamus’ as follows;“A writ issued by a Court to compel performance of a particular act by a lower Court or a governmental officer or body usually to correct a prior action or failure to act”. 16.In Republic –Vs- Kenya National Examination Council ex parte Gathenji and others ( 1997) eKLR , the Court of Appeal delivered itself on the scope and efficacy of mandamus as follows;“The next issue we must deal with is this, what is the scope and efficacy of an order of mandamus?Once again we turn to Halsbury’s Laws of England, 4th Edition Volume 1 at page 111 from paragraph 89. That learned treatise says:The Order of Mandamus is for a most extensive remedia nature, and is, in form, 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 redness is less convenient, beneficial and effectual.At paragraph 90 headed “the mandate” it is stated:The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once.Where a statute which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.What do these principles mean? They mean that an order of mandamus will compel 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. …” 17.In the matter herein, the Respondents have argued that the instant application is premature because the Certificate of Order against the County Government and the demand for settlement were not personally served upon the 2nd Respondent. In my considered view, that argument is legally unsustainable and amounts to an attempt to evade a lawful decree of the Court through procedural technicalities. 18.Section 21 of the Government Proceedings Act requires that once a decree is issued against the Government, a Certificate of Order against the Government be served so as to notify the Government of its financial obligations. The purpose of this provision is to ensure the Government is made aware of the decree and not create artificial barriers to enforcement where knowledge is already established. 19.In the matter herein, the Respondents do not deny knowledge of the decree issued by the Court. They could not do so because there is evidence that the judgment, the decree, the certificate of taxation and the Certificate of Order against the Government were served upon the Office of the County Attorney, the statutory legal office charged with representing the County Government in all civil proceedings. That office is established under the Office of the County Attorney Act, which at Section 7 designates the County Attorney as;a.The principal legal adviser to the County Government; andb.The Officer who represents the County Executive in Court proceedings 20.Arising from the foregoing, the County Attorney is by law the official legal mouthpiece of the County Government and service upon that office constitutes service upon the County Government itself. The Respondents could not therefore deny service or knowledge of the decree when the office that is legally mandated to represent them in Court proceedings has been participating in the proceedings leading to the issuance of the Certificate of Order against the County Government since the year 2022. 21.As Odunga J., (as he then was) stated in Republic –Vs- Attorney General Ex-parte James Alfred Koroso (2013) eKLR:“..... In the present case the exparte applicant has no other option of realizing 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 babysitting 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. Access to justice cannot be said to have been ensured when persons in whose favour judgements have been decreed by Courts of competent jurisdiction cannot enjoy the fruits of their judgement due to roadblocks placed on their paths by actions or inactions of public officers. Public offices, it must be remembered are held in trust for the people of Kenya and Public Officers must carry out their duties for the benefit of the people of the Republic of Kenya. To deny a citizen his/her lawful rights which have been decreed by a Court of competent jurisdiction is, in my view, unacceptable in a democratic society. Public officers must remember that under Article 129 of the Constitution executive authority derives from the people of Kenya and is to be exercised in accordance with the Constitution in a manner compatible with the principles of service to the people of Kenya, and for their well-being and benefit. The institution of judicial review proceedings in the nature of mandamus cannot be equated with execution proceedings. In seeking an order of 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. The relief sought is not execution or attachment of process in the nature thereof. It is not sought to make any person “individually liable for any order for any payments,” but merely to oblige a government official to pay, out of the funds provided by Parliament, a debt held to be due by the High Court, in accordance with a duty placed upon him by Parliament…..” 22.In the matter herein, it was evident that the Respondents were aware of the demand for payment made by the Ex-Parte Applicant. They were aware when the Bill of Costs was taxed and were represented when the judgment was entered against them for the decretal sum on 30th July 2025. 23.While the Respondents ultimately asserted that they were unable to pay because the decretal sum of Kshs. 406,212.06 had not been included in the current financial year’s budget, it was evident to me that the failure to do so was due to their own internal administrative arrangements and the same could not be relied on to defeat a judgment creditor’s right to enjoy the fruits of his judgment. 24.As Githua J., held in Republic –vs- Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex-Parte Manoah Egunza (2012) KEHC 1643(KLR):“In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. 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 of enforcement of decrees for money issued against the government is found in Section 21 (1) and (2) of the Government Proceedings 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 the 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 statory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled to 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.The Respondent’s claim that the Applicant should have waited until the start of the next financial year to enforce payment of the decree issued in his favour cannot be sustained firstly because it has no legal basis and secondly because it is the responsibility of the Government to make contingency provisions for its liabilities in tort in each financial year so that successful litigants who obtain decrees against the Government are not left without remedy at any time of the year…..” 25.Arising from the foregoing, it was evident to me that the allegation of non–service is both factually incorrect and legally unsustainable. In my view, the service of the Certificate of Order against the County Government on the County Attorney on 2nd September 2025 constituted a demand for payment and the fact that no response or payment was received by the Applicant from the Respondents for the next one month was sufficient reason for the Applicant to construe that the 2nd Respondent had neglected to perform his statutory duty to pay under Section 21 (3) of the Government Proceedings Act. The Applicant was accordingly entitled to move to Court to seek an appropriate remedy and the Applicant cannot be faulted for being vigilant. 26.In the result, I am persuaded that the Applicant has met the requirements for the grant of an order for mandamus. Accordingly, I hereby allow the Notice of Motion dated 4th November 2025 as prayed with costs. 27.These orders shall apply in ELCJR No. E006 of 2025 and E009 of 2025 RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 23RD DAY OF JULY, 2026.…………………J.O. OLOLAJUDGEIn the presence of:a) Ms. Firdaus Court Assistant.b) Ms. Gachau holding brief for Miller Advocate for the Applicantc) Ms. Muema holding brief for Anguche Advocate for the Respondents