https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12107

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAROK** **HC JR NO. E002 OF 2026** **(CORAM: HON. CHARLES M. KARIUKI – J)** **IN THE MATTER OF: AN APPLICATION BY MOMANYI & ASSOCIATES ADVOCATES FOR JUDICIAL REVIEW AND ORDERS OF MANDAMUS** **AND** **IN THE MATTER OF: NAROK HCC MISC NO E003 OF 2025** **AND** **IN THE MATTER OF: SECTION 8 AND 9 OF THE LAW REFORM ACT** **REPUBLIC………………………………………………………………………APPLICANT** **-VERSUS-** **THE COUNTY SECRETARY,** **COUNTY GOVERNMENT OF NAROK..............................................…. 1ST RESPONDENT** **THE CHIEF OFFICER/COUNTY TREASURER,** **COUNTY GOVERNMENT OF NAROK………………………………2ND RESPONDENT** **AND** **MOMANYI & ASSOCIATES ADVOCATES…………....….…EX PARTE APPLICANT** **RULING** 1. **INTRODUCTION AND BACKGROUND** 2. This ruling concerns the Ex parte Applicant's Notice of Motion dated 6th March 2026, brought pursuant to Sections 8 and 9 of the Law Reform Act, Order 53 Rules 1 and 3 of the Civil Procedure Rules, and leave granted by this Court on 4th March 2026. The Applicant seeks an order of mandamus compelling the County Secretary and the Chief Officer/County Treasurer of the County Government of Narok to satisfy a Certificate of Order arising from Narok HCC Miscellaneous Application No. E003 of 2025, together with accrued interest and costs. 3. The background to the dispute is largely uncontested. The Applicant acted for the Respondents in legal transactions relating to the Maasai Mara National Reserve Smart Card Project. Following non-payment of its legal fees, the Applicant successfully taxed its Advocate–Client Bill of Costs, obtained judgment for Kshs. 261,003,439.40, extracted the requisite decree and Certificate of Order, and served the Respondents. Despite service and demand, payment has not been forthcoming, prompting the present judicial review proceedings. The Respondents do not dispute the existence of the decree or the Certificate of Order but oppose the application principally on the ground that budgetary limitations constrain immediate payment. 4. **PLEADINGS** 5. **Notice of Motion** 6. The Ex parte Applicant, Momanyi & Associates Advocates, moved the Court by a Notice of Motion dated 6th March 2026, brought pursuant to Order 53 Rules 1 and 3 of the Civil Procedure Rules, Sections 8 and 9 of the Law Reform Act, and pursuant to leave granted on 4th March 2026. 7. The Applicant sought an order of mandamus compelling the County Secretary and the Chief Officer/County Treasurer, County Government of Narok, to satisfy the Certificate of Order issued in Narok HCC Misc. No. E003 of 2025, together with interest on the taxed costs from 6th March 2025 until payment in full. The Applicant also sought costs of the application. 8. The motion was founded because the Certificate of Order issued on 23rd September 2025 remained unsatisfied despite service upon the Respondents, who had failed and/or refused to settle the decretal amount, thereby denying the Applicant the fruits of a lawfully obtained judgment. 9. **Supporting Affidavit** 10. In the supporting affidavit sworn on 6th March 2026, Ben Momanyi, an Advocate practising in the firm of Momanyi & Associates Advocates, deponed that the Respondents had instructed the Applicant to provide legal services in relation to a contract between the former County Council of Narok and Equity Bank Limited concerning the Maasai Mara National Reserve Smart Card Project. He stated that following the Respondents’ failure to pay the agreed legal fees, the Applicant filed an Advocate–Client Bill of Costs dated 27th January 2025 in Narok HCC Misc. No. E003 of 2025. After both parties participated in the taxation proceedings, the Bill was taxed and a ruling delivered on 30th July 2025, following which the ruling and Certificate of Taxation were served upon the Respondents. 11. The deponent further averred that the Applicant subsequently filed an application dated 29th October 2025 seeking entry of judgment in terms of the taxed costs. The application was served upon the Respondents, whose counsel indicated that it was unopposed. Consequently, judgment was entered in favour of the Applicant for Kshs. 261,003,439.40, together with interest and costs at court rates. 12. He deponed that the resultant decree and Certificate of Order were duly extracted and served upon the Respondents, together with demand notices. Still, the Respondents had failed to satisfy the decretal sum. 13. It was therefore contended that, there being no other effective means of enforcing the judgment against the County Government, the Court should issue an order of mandamus compelling the Respondents to discharge the decretal amount together with the accrued interest. 14. **Replying Affidavit** 15. In the Replying Affidavit sworn on 7th May 2026, Allan Meing’ati, the County Attorney of the County Government of Narok, deponed on behalf of the 1st and 2nd Respondents in opposition to the Ex-parte Applicant’s Notice of Motion. 16. He acknowledged that the Ex-parte Applicant had filed an Advocate–Client Bill of Costs dated 27th January 2025 in Narok High Court Miscellaneous Application No. E003 of 2025 arising from legal services rendered to the former County Council of Narok in relation to the preparation of an agreement between the County Council of Narok and Equity Bank Limited in 2011. He further admitted that the Court taxed the Bill of Costs on 30th July 2025 at Kshs. 261,003,439.40, and that the present application sought an order of mandamus to compel payment of the taxed amount. 17. The deponent, however, contended that the County Government operates within an approved budget and relies on allocations from the National Government, and therefore cannot make payments of such magnitude on demand. He averred that the County Government’s current financial resources and budgetary allocations were insufficient to satisfy the decretal sum immediately. He further argued that the Applicant’s claim for interest on the taxed costs until payment in full would place an undue burden on the County Government’s already constrained budget and would be contrary to the public interest by adversely affecting the County’s fiscal operations. It was therefore deposed that granting the orders sought would occasion prejudice to the Respondents due to their inability to settle the amount immediately because of budgetary constraints. Consequently, the Respondents urged the Court to dismiss the application with costs. 18. **SUBMISSIONS** 19. **The Ex parte Applicant’s Submissions** 20. The Ex parte Applicant submitted that it had satisfied all the legal requirements for the grant of an order of mandamus compelling the Respondents to satisfy the Certificate of Order issued in Narok HCC Misc. No. E003 of 2025. It was argued that the Respondents had instructed the Applicant to provide legal services, but upon non-payment of its fees, it successfully taxed its Advocate–Client Bill of Costs at Kshs. 261,003,439.40, obtained judgment, extracted the decree and Certificate of Order, and duly served the Respondents, who had nevertheless failed to settle the decretal sum. The Applicant contended that, having exhausted all statutory procedures, the only available avenue for enforcement against a government entity was a writ of mandamus. 21. Counsel submitted that section 21 of the Government Proceedings Act, Cap. 40 imposes a statutory obligation upon the accounting officer of a government department to satisfy a decree once a Certificate of Order has been issued and served. Since execution against the Government is prohibited, mandamus is the appropriate remedy to compel performance of that statutory duty. Reliance was placed on **Republic v Permanent Secretary, Office of the President, Ministry of Internal Security & Another Ex Parte Nassir Mwandihi [2014] KEHC 6027 (KLR),** where the Court held that although execution proceedings cannot issue against the Government, the accounting officer is under a statutory duty to satisfy judgments and mandamus will issue where no other adequate remedy exists. The Applicant also relied on **R (Regina) v Dudsheath, ex parte Meredith [1950] 2 All ER 741, Republic v Town Clerk, Kisumu Municipality ex parte East African Engineering Consultants [2007] 2 EA 441, and Shah v Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543,** for the proposition that mandamus lies to compel public officers to perform statutory duties where an applicant has a legal right and no alternative remedy. 22. The Applicant further submitted that denying the orders sought would render its judgment worthless and undermine the constitutional right of access to justice, as it had no other lawful means of enforcing the decree. It argued that the order sought was not directed against the Government as such, but against the responsible public officers, to compel them to discharge their statutory obligation to pay. 23. On the applicable principles governing the grant of mandamus, the Applicant relied on **Prof. Tom Ojienda & Associates v County Government of Migori, Miscellaneous Case No. E016 of 2025 [2025] KEELRC 3583 (KLR).** It submitted that the decision adopted the criteria set out in the **Canadian authorities of Apotex Inc. v Canada (Attorney General) and Dragan v Canada (Minister of Citizenship and Immigration**), namely that there must be a public legal duty, the duty must be owed to the applicant, there must be a clear right to performance following a prior demand and unreasonable refusal or delay, there must be no adequate alternative remedy, the order must have practical utility, and there must be no equitable bar to relief. Counsel maintained that all these requirements had been satisfied in the present case. 24. The Applicant rejected the Respondents' defence of budgetary constraints, submitting that the Respondents had neither demonstrated any genuine intention to settle the decretal amount nor indicated the time required for payment. It argued that the Respondents had merely invoked lack of budgetary allocation without communicating any payment plan or taking steps towards settlement. Reliance was again placed on **Prof. Tom Ojienda & Associates v County Government of Migori [2025] KEELRC 3583 (KLR**), where the Court held that a respondent's failure to specify a reasonable period for payment or to demonstrate good faith diminished the credibility of a plea based on financial constraints and justified the grant of mandamus. 25. Finally, the Applicant relied on **Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza, Miscellaneous Application No. 31 of 2012 [2012] KEHC 1643 (KLR),** where the Court held that service of a Certificate of Order against the Government creates an immediate statutory duty on the accounting officer to pay the decretal amount together with any lawfully accruing interest, and that such obligation is not contingent upon budgetary allocation or parliamentary approval. The Applicant submitted that once the Respondents failed to pay within a reasonable time after service, they neglected their statutory duty, thereby entitling the Applicant to seek an order of mandamus. It therefore urged the Court to find that it had fulfilled all the conditions for the grant of the remedy and to allow the application with costs, so that it could enjoy the fruits of its judgment in accordance with Article 159 of the Constitution. 26. **The Respondents’ Submissions** 27. The Respondents did not file written submissions despite being granted leave to do so. The Court shall therefore determine the application based on the pleadings, affidavits, the Applicant's submissions, and the applicable law. 28. **ISSUES FOR DETERMINATION** 29. Having considered the pleadings, affidavits and the Ex-parte Applicant's submissions, the following issues arise for determination: 30. **Whether the Ex-parte Applicant has satisfied the legal requirements for the grant of an order of mandamus.** 31. **Whether the Respondents' plea of budgetary constraints constitutes a lawful defence to the application.** 32. **What orders ought to issue.** 33. **ANALYSIS AND DETERMINATION** 34. **Whether the Applicant has satisfied the requirements for an order of mandamus** 35. The law governing judicial review orders of mandamus is well settled. Under Sections 8 and 9 of the Law Reform Act, read together with Order 53 of the Civil Procedure Rules, the Court has jurisdiction to issue an order of mandamus compelling the performance of a statutory public duty. 36. In the present case, the Respondents do not dispute the material facts. The Respondents expressly admit the following matters: 37. The Advocate–Client Bill of Costs was taxed; 38. Judgment was entered in favour of the Applicant; 39. the decretal sum stands at Kshs. 261,003,439.40; 40. the Applicant now seeks payment through mandamus. 41. The only explanation advanced is the alleged lack of budgetary allocation. 42. The law regarding enforcement of decrees against Government entities is contained in section 21 of the Government Proceedings Act, Cap. 40. Once a Certificate of Order Against the Government has been issued and served, the accounting officer assumes a statutory obligation to satisfy the decree. Since execution proceedings cannot be issued against Government property, mandamus is the recognised mechanism by which the Court compels compliance. 43. In **Republic v Permanent Secretary, Office of the President, Ministry of Internal Security & Another Ex Parte Nassir Mwandihi [2014] KEHC 6027 (KLR),** Odunga J. stated: "*Execution proceedings as known to law are not available against Government. The accounting officer is nevertheless under a statutory duty to satisfy a judgment made against that department."* 1. The Court adopted the earlier principles in **R (Regina) v Dudsheath, ex parte Meredith [1950] 2 All ER 741, Republic v Town Clerk, Kisumu Municipality ex parte East African Engineering Consultants [2007] 2 EA 441, and Shah v Attorney General (No. 3), Kampala HCMC No. 31 of 1969 [1970] EA 543**, all of which recognize mandamus as the appropriate remedy for compelling public officers to discharge statutory duties. 2. In **Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR**, the Court of Appeal held that an order of mandamus issues to compel the performance of a public duty imposed by statute where the person or body against whom the order is sought has failed to perform that duty. The remedy is available where the applicant has a legal right to performance, and no other specific legal remedy exists. 3. The Applicant has demonstrated that: 4. judgment exists; the Certificate of Order was issued; 5. the Respondents were duly served; 6. payment has not been made; 7. execution is unavailable against the County Government. 8. Accordingly, every statutory precondition for issuance of mandamus has been fulfilled. 9. The Court also finds persuasive the decision in **Prof. Tom Ojienda & Associates v County Government of Migori, Miscellaneous Case No. E016 of 2025 [2025] KEELRC 3583 (KLR)** where the Court adopted the criteria set out in **Apotex Inc. v Canada (Attorney General) and Dragan v Canada (Minister of Citizenship and Immigration),** namely that there must exist: a public legal duty; a duty owed to the applicant; a clear legal right to performance; prior demand and refusal or unreasonable delay; absence of an alternative remedy; practical utility of the order; and no equitable bar. 10. The Applicant satisfies each of these requirements. 11. **Whether budgetary constraints constitute a lawful defence** 12. The Respondents urge the Court to decline the relief because the County Government operates within approved budgets and currently lacks adequate financial resources. 13. While this Court appreciates the financial realities facing county governments, budgetary constraints cannot override a statutory obligation imposed by Parliament. Acceptance of such an argument would effectively render every decree against Government unenforceable whenever public finances are strained. 14. The law has consistently rejected budgetary allocation as a defence to enforcement of a Certificate of Order. 15. In **Republic v Permanent Secretary, Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza, Miscellaneous Application No. 31 of 2012 [2012] KEHC 1643 (KLR),** Githua J. held: *"Section 21(3) …does not condition payment to budgetary allocation and parliamentary approval of Government expenditure."* 1. The Court further held that once the Certificate of Order has been served and payment is not forthcoming within a reasonable time, the accounting officer is deemed to have neglected the statutory duty imposed by law. 2. Similarly, in **Prof. Tom Ojienda & Associates v County Government of Migori [2025] KEELRC 3583 (KLR),** the Court held that a mere assertion of financial constraints is insufficient where the Government fails to demonstrate good faith by proposing timelines or mechanisms for settlement. 3. In the present matter, the Respondents have not indicated: 4. when payment will be made; 5. whether any budgetary provision has been sought; 6. whether any instalment proposal has been offered; or 7. any concrete steps have been taken towards settlement. 8. The plea therefore remains a bare assertion unsupported by evidence. 9. This Court reiterates that judicial decrees are not advisory opinions. Article 48 of the Constitution guarantees access to justice, while Article 159(2)(a) requires justice to be administered to all irrespective of status. A successful litigant is entitled to enjoy the fruits of a valid judgment. Public bodies cannot avoid compliance merely because satisfying the decree would cause financial inconvenience. 10. Consequently, I find that the Respondents have failed to discharge the statutory duty imposed upon them under section 21 of the Government Proceedings Act. 11. **DISPOSITION** 12. In the result, the Court finds that the Notice of Motion dated 6th March 2026 is meritorious. 13. Accordingly, the Court makes the following orders: 14. **An order of Mandamus is hereby issued directing the County Secretary, County Government of Narok, and the Chief Officer/County Treasurer, County Government of Narok, to satisfy the Certificate of Order issued in Narok HCC Miscellaneous Application No. E003 of 2025 together with the interest lawfully accruing thereon until payment in full.** 15. **The Respondents shall comply with this order forthwith and in accordance with section 21 of the Government Proceedings Act.** 16. **The Ex-parte Applicant shall have the costs of the Notice of Motion dated 6th March 2026.** 17. It is so ordered. **DATED, SIGNED, AND DELIVERED AT NAROK, THIS 31ST DAY OF JULY, 2026.** **CHARLES KARIUKI** **JUDGE**