https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11897

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **JUDICIAL REVIEW APPLICATION NO. E017 OF 2023** **IN THE MATTER OF AN APPLICATION FOR AN ORDER OF MANDAMUS** **AND** **IN THE MATTER OF SECTION 21(4) OF THE GOVERNMENT PROCEEDINGS ACT AND ORDER 22 AND 29 OF THE CIVIL PROCEDURE RULES** **AND** **IN THE MATTER OF EXECUTION OF A DECREE AND CERTIFICATE OF ORDER AGAINST THE COUNTY GOVERNMENT OF MIGORI FOR KSHS1,261,124/=** **AND** **IN THE MATTER OF ORDER 53(1) OF THE CIVIL PROCEDURE RULES 2010** **BETWEEN** **REPUBLIC............................................................................................APPLICANT** **VERSUS** **THE COUNTY SECRETARY MIGORI COUNTY GOVERNMENT…….1ST RESPONDENT** **THE CHIEF OFFICER FINANCE MIGORI COUNTY…………… 2ND RESPONDENT** **MELKIO OKELLO OPONDO** **(Suing as Chairman God Kwach Development Group) …………. EX PARTE APPLICANT** **JUDGMENT** Before this Court is the Ex Parte Applicant’s Notice of Motion application dated 20th November 2023 seeking an order of mandamus commanding the Respondents, to pay the Applicant the decretal sum now standing at Kshs. 1261124/= together with interest at 14% up to the date of payment, the said sum being decretal sum in Migori Migori CMCC No. 24 of 2020 The Ex-Parte Applicant also sought for costs of the application. The application is premised upon the grounds set out in its face as follows:- 1. That the applicant obtained judgment against the County Government of Migori in Migori CMCC No. 24 of 2020 for now a total of Kshs. 1,261,124 which amount continues to attract interest at 14% till the date of payment 2. That the County Government of Migori through the two respondents herein have refused to honour the court decree and pay the applicant the decretal sum judged by the court 3. That the Government Proceedings Act as read with the Civil Procedure Act prohibits attachment of the County Government property in execution of court decrees 4. That the only remedy available to the decree holder is to have the order of mandamus issued to compel the two County Government servants in charge of finance and administration to pay the applicant the decretal sum of Kshs. 1,261,124 with interest to the date of payment 5. That is in the interest of justice that the order of mandamus do issue The application was also supported by Verifying Affidavit sworn by the Applicant on 20th November 2023 where it was deponed that he had a judgment in his favour against the County Government of Migori in Migori CMCC No. 24 of 2020 for now Kshs. 1,261,124 as in Annexed marked MOO 1 is a copy of the certificate of order against the County Government of Migori The Applicant deponed that the County Government of Migori is able to pay the said decretal sums but the two Respondents cited in this proceeding have refused to pay him. The Applicant also deponed that the certificate of order against the County Government of Migori was duly served upon the County Government of Migori. As shown Annexed and marked MOO 2 is a copy of the order duly stamped and MOO 2 (a) a copy of the affidavit of service. The Applicant deponed that he had been advised by his advocate that the law prohibits attachment of the County Government of Migori therefore the only course open to him is through this application for an order of mandamus That since the two Respondents who are servants of the County Government of Migori in charge of finance and administration have refused to honor the court decree, this court should issue an order of mandamus to compel them to pay him. The Applicant also filed Supporting affidavit sworn on 20th November 2025 reiterating the averments in the verifying affidavit. In response to the application the Respondents filed a Replying Affidavit sworn on 10th July 2024 by Dr. John Achuora in opposition to the application. Dr. John Achuora deponed that he was the Migori County Government's Chief Officer responsible for Finance and the head of Migori County Treasury hence competent to swear this Affidavit on behalf of the 1st Respondent and myself. THAT the ex parte Applicant has not met the requirements of Order 21 of the Government Proceedings Act to warrant this court granting an order of Mandamus as there is no proof of service of the certificate of order against the county government of Migori dated 19th May 2023 upon the Respondents. THAT during 2023/2024 budget preparation for the Office of the County Attorney that is given a budget to settle all legal claims in the County Government=, they presented a budget of pending bills and defended the same before Migori County Assembly budget committee. THAT the budget presented by the Office of the County Attorney before the budget committee was reduced hence couldn't settle the pending bills in this matter, an act that the Respondents herein had no control at all. THAT the Ex-parte Applicants herein should understand their position that they always pay pending bills upon the County Assembly approval of the pending bills budget and when funds are availed to the County Government by the National Government. THAT the Respondents have not refused or neglected to satisfy the decretal sum save that it is waiting for budgetary allocations from the National Government. THAT the County Government's inability to settle its liabilities and Claims is as a result of inadequate budgetary allocations and therefore ought to be given some breathing space to arrange its finances. THAT it is within the public domain that since the current national government took over, budgetary allocations to the county government have been immensely interrupted to an extent of having the salaried workers of the county governments having delays in processing of their dues. THAT the County government largely depends on budgetary allocations from the National Government and has not refused or neglected to satisfy the decretal sum save that it shall be seeking more time to comply as its debt portfolio cannot match its financial resources and also the financial year 2023/2024 has ended making the County Government to wait a little longer to receive funds from the National Government. THAT they have already initiated the budget process for the financial year for 2024/2025 and the Ex-parte Applicant's pending bills is one of their priorities knowing and having been informed by our legal officer the consequences of not honouring court's decrees and orders. THAT he is aware of his own knowledge that the County Government of Migori has not refused to settle the decretal sum to warrant application to compel the 2nd Respondent to pay the ex-parte Applicant the decretal sum. The Respondents are willing and have put in place every effort to settle the decretal sums in the financial year 2024/2025 where the National Governments is likely to avail funds to County Governments around or before October 2024 The Respondents pleaded with the court and the Ex-parte Applicant herein to understand that it is not intentional but due to strict and limited funds budgeted for the pending bills a matter that is affecting nearly all the County Governments in Kenya. THAT guided by the Public Finance Management Act, 2012 the 2nd Respondent herein should not be punished for what is beyond their control following the provisions of the said Act as any expenditure beyond and beside the budget will create audit issues and possible arrest for misuse of public funds. The Respondents deponed that the application is incompetent, misconceived, untenable and bad in law and an abuse of the court process. THAT in the circumstances, the orders sought lack merit and the same should suffer the inevitable fate of dismissal with costs. THAT it is in the interests of justice, fairness and equity for the Applicant's Application dated 20th November 2023 be dismissed with costs to the Respondents, as the same is bad in law. The application was canvassed by way of written submissions. The Applicant’s submissions are dated 2nd December 2025 and are to the effect that the Ex-parte Applicant filed Migori CMCCC No. 24 of 2020 against the County Government of Migori on 18/03/2021. He obtained judgement against the said Migori County Government for an Award of Kshs. 1,169,877/= together with costs and interests from January 2022 to October 2025 assessed at Kshs.120,975/= and Kshs.95,539/= respectively. As at the time of filing these submissions, the amounts owed and due to the ex-parte applicant are Kshs.l , 1386,391/= by virtue of further accrued interests. The said amount has not been paid to the ex-parte applicant by the County Government of Migori leading to the filing of this Judicial Review seeking an order for Mandamus. Section 21 (4) of the Government Proceedings Act provides \_"Save as afore-stated no execution or attachment or process on the nature there of shall issue out of any such court for enforcing payment by the government of any such money or costs as aforesaid no person shall be individually liable under any order for payment by the government departments, or any offices of government as such of money or costs.” In the ELC Court at Nairobi JR Case EOII OF 2024 Chumo V County Government of Nairobi & Others, Judge T Murigi held that the effect of these provisions is that whereas execution proceedings are not available against the Government, the accounting officer for the Government department concerned is nevertheless under a statutory duty to satisfy a judgement made by the court against the department. Halsbury Law of England 4th Edition, Vol 7 p. 111 paragraph 89 as cited in Republic V Kenya National Examinations Council ex-parte Gathengi CA No. 234 of 1996 cites that: "The order of mandamus is of most extensive remedial 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 appertaining 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 redress is less convenient, beneficial and effectual. It was submitted that the rationale for the provisions of S.21 (4) of the Government Proceedings Act and the protection of the government was further explained by Mativo J in **Republic Vs Principal Secretary, Ministry of Internal Security & Another ex-parte Schon Noorani & Another [2018] eKLR as:** "The eight factors that must be present for the writ to issue are; 1. There must be a public legal duty to act 2. The duty must be owed to the Applicants 3. There must be a clear right for the performance of that duty meaning that; 1. The Applicants have satisfied all conditions precedent and, 2. There must have been; 1. A prior demand for performance 2. A reasonable time to comply with the demand, unless there was outright refusal iii. An express refusal, or an implied refusal through unreasonable delay iv. No other adequate remedy is available to the Applicants v. The Order sought must be of some practical value or effect vi. There is no equitable bar to the relief sought vii. On a balance of convenience, mandamus should lie.” That the above rationale was also explained by Justices Ibrahim and Visram in Kisya Investments Ltd Vs AG & Another [2005] The Applicant’s Counsel submitted that it has been an established practices and law that the only remedy for justice to an ex-parte applicant such as the applicant herein who is owed money by the Migori County Government is to apply for an order of mandamus to compel the Migori County Government Official responsible for finance administration to pay the decretal sum un Migori CMCC No.25 of 2020. It was further submitted that Section 103 of the Public Finance Management Act establishes the County Treasury which is comprised of the County Executive Member of Finance, the Chief Officer and the departments of the County Treasury responsible for finance and fiscal matters. That under **Section 103(3) of the Act**, the County Member for Finance is the head of the Treasury and is responsible for financial matters in the County. It is submitted that the Respondents are jointly responsible for the satisfaction of court orders and decrees on payment of money owed by the County Government of Migori. Furthermore, it was also submitted that despite several demands and requests to pay the Award the Respondents had refused/ignored to pay the Award as shown in Annexture KMI demand letter dated 11/7/2024 to the Respondents; Annexture KM2 is a copy of a demand letter for payment by the Applicant to the Respondents dated 20/2/2025 and Annexture KM3 is a copy of yet another demand letter dated 21/3/2023 demanding payment from the Respondents. The Applicant also submitted that a reasonable time to comply with the decree and demand was given from 2020 to 2025 approximately over 4 years. That in their replying affidavits dated 10/7/2024, the Respondents in paragraph 8 acknowledge that they "have not refused or neglected to satisfy the decretal sum save that it is waiting for budgetary allocations from the National Government" This admission fulfills rational Ill, IV, V, VI and Vll. The Applicant cited the holding in Republic Vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security & Another Ex-parte Fredrick Manoah Engugza, where the court held that: "**The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issues against the Government is found in Section 21 (1) &(2) of the Government Proceedings Act which provides 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 favor cannot be sustained firstly because it has no legal basis and secondly 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."** The Applicant similarly referred to the case of Republic Vs County Secretary Nairobi City County\_ Government & 3 Others Exparte Koceyo Advocate (2021) eKLR. where it was held that the County Secretary and Chief Officer Finance were the right people with the duty and responsibility of satisfying court decrees and judgements. It was submitted that the Ex-parte Applicant herein had satisfied all the pre-requisite rationale and requirements for the issuance of an order of mandamus as per Section 21 of the Government Proceedings Act. In the Affidavit in support of the Chamber Summons applying for leave in this Judicial Review, the exparte applicant annexed a certificate of order against the County Government of Migori for Kshs.1,042,252/= being the decretal sum together with interest and costs dated 19th May 2023 (See Annexture KM4). The certificate was duly served upon the Migori County Secretary and the Chief Finance Officer; the two respondents through the County Attorney's Office. That In **Judicial Review No.6 of 2020 the Migori High Court Republic Vs County Secretary and another ex-parte Paul Ngige, t**his court held that the service of the certificate of order against the County Government of Migori similar to the instant case was sufficient to convince the court that S.21 of the Government Proceedings Act had been complied with. The Applicant further submitted that in the circumstances of this case the only remedy available to the ex-parte applicant is the order for mandamus. It was submitted that in Republic Vs Kenya National Examination Council ex-parte Gathenji & another (1997) Ekir it was held that:- “If this Honorable Court were to decide not to issue the order of mandamus, the ex-parte applicant would be stuck with a sterile decree of the court which he can never execute.” It is an established cardinal principle of law that courts should never issue orders in vain. The Respondents were dully served with this application, but they have not opposed it or responded to it. They have also not filed any submissions. The orders sought are therefore deserved. The Respondents filed their submissions dated 8th January 2026 and submitted that issues for determination are:- Whether the application has been brought against the correct parties? Whether the elements of writ of mandamus orders have been proved to the requisite standard against the `1st and 2nd Respondents. What interest is applicable to the principal sum and costs **On the 1st issue whether the application has been brought against the correct parties?** It was submitted that Section *21(3) of the Government Proceedings Act* is explicit that**:** **(**3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon...” That the term **“the accounting officer”** has been the subject of interpretation in various decisions. For instance, in ***Council of Governors & Others v The Senate Petition No. 413 of 2014 [2015] eKLR*** it was held: * 1. The Petitioners sought the interpretation of the term “Accounting Officer”. In that regard, Article 226 of the Constitution provides; 1. Act of Parliament shall provide for **-** (a)… (b) The designation of an accounting officer in every public entity at the national and county level of government**.** * + 1. The accounting officer of a national public entity is accountable to the national assembly for its financial management, and the accounting officer of a county public entity is accountable to the county assembly for its financial management. Pursuant to this provision, Parliament enacted the Public Finance Management Act. The appointment and designation of a County Government Accounting Officer is provided for under Section 148 of that Act, as follows; * + - 1. A County Executive Committee member for finance shall, except as otherwise provided by law, in writing designate accounting officers to be responsible for managing the finances of the county government entities as is specified in the designation. 2. Except as otherwise stated in other legislation, the person responsible for the administration of a county government entity, shall be the accounting officer responsible for managing the finances of that entity. That it therefore follows that **“an accounting officer**” for a County Government entity is the person so appointed and designated as such by the County Executive Committee Member for Finance under Section 148 of the Public Finance Management Act. Indeed, Section 148 (3) of the Public Finance Management Act mandates the County Executive Committee Member for Finance to ensure that each County government entity has an accounting officer as provided for under Article 226(2) of the Constitution. Likewise,the Respondents cited the holding in ***Republic v Kisii County Government Ex-Parte Peter Kaunda Nyamosi & 2 others [2018] eKLR,*** where the position taken was**:** “25. It is therefore clear that the accounting officer for the County Government is the County Executive Member for Finance. Since the order of mandamus was against the County Government, I do not think that this is fatal as the order of mandamus remains alive and the court may issue a notice to show cause against the accounting officer, upon whom the statutory duty is imposed, to ensure that its decision is enforced (see Consolata Kihara & 21 Others v Director of Kenya Trypanosomiasis Research Institute [2003] KLR 582 and Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County (Ex Parte David Mugo Mwangi) NBI HC Misc. App. 222 of 2016 [2018] eKLR).” The Respondents also cited the case of **Soloh Worldwide (supra)** where same position was taken thus**:** “**It therefore follows that the person who has the overall financial obligation for the purposes of the affairs of a County Government must be the County Executive in Charge of Finance and unless he shows otherwise, he is the one under obligation to pay funds, in the capacity as the accounting officer. It must always be remembered that a judicial review application is neither a criminal case nor a civil suit hence the application ought to be brought against the person who is bound to comply with the orders sought therein. In an application for mandamus where orders are sought to compel the satisfaction of a decree against a County Government, the proper person to be a respondent ought to be the said County Executive in Charge of Finance unless he discloses that he had in fact appointed an accounting officer for that purpose…”** The Respondents also referred the court to Section 44(3) which outlines the duties of a County Secretary as follows: - (3) The county secretary shall— (a)be the head of the county public service; (b)be responsible for arranging the business, and keeping the minutes, of the county executive committee subject to the directions of the executive committee; (c)convey the decisions of the county executive committee to the appropriate persons or authorities; and (d)perform any other functions as directed by the county executive committee. That it was plain therefore, that in the absence of proof of appointment by the County Executive Committee member for finance of the accounting officer for the County Government of Migori, the proper person to look to for the settlement of debts owing from the County Government of Migori is the County Executive Committee member for finance. Accordingly, in the instance case the Certificate of order against Migori County Government was served upon the County Secretary, the 1st respondent and not the 2nd respondent as required under the law. On the 2nd issue whether the elements of writ of mandamus orders have been proved to the requisite standard against the 1st and 2nd respondent, the Respondents submitted that Contempt of court has been defined to mean conduct or action that defies or disrespects the authority of the Court. Hence, in ***Sheila Cassat Issenberg & Another v Antony Machatha Kinyanjui (supra)*** it was held**:** **“57. As was again stated by the Supreme Court of India in Mahinderjit Singh Bitta v Union of India & Others 1 A NO. 10 of 2010 (13th October, 2011):** **In exercise of its contempt jurisdiction, the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and willful violation of the order of the court, even to constitute a civil contempt. Every party is liable before the court and even otherwise, is expected to obey the orders of the court in its spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution. (Emphasis). “** As to the elements that must be proved for an alleged contemnor to be held to be in contempt of court, the Respondents submitted that the court in the **Sheila Cassat Issenberg & Another v Anthony Machatha Kinyanjui (supra),** after reviewing applicable precedents, continued thus: “**58.The emphasis as shown in the above cases is that there must be “willful and deliberate disobedience of court orders.” There cannot be deliberate and willful disobedience, unless the contemnor had knowledge of the existence of that order.** **And because contempt is of a criminal nature, it is always important that breach of the order be proved to the required standard; first, that the contemnor was aware of the order having been served or having personal knowledge of it, and second; that he deliberately and willfully disobeyed it.”** That in the case of ***Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR Mativo, J (as he then was)*** it was held as follows: “ **It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove:** **(i)the terms of the order,** **(ii)Knowledge of these terms by the Respondent,** **(iii)Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated: -** **There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: -** **(a)the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;** 1. **the defendant had knowledge of or proper notice of the terms of the order;** 2. **the defendant has acted in breach of the terms of the order; and** **(d)the defendant's conduct was deliberate….”** The Respondents submitted that it is plain that the 2nd Respondent has not acted in breach of failing to satisfy the decree and/or Judgment the certificate of order owing to the fact that in the instance case the Certificate of order against Migori County Government, Judgment and/or decree was never served upon the Chief Officer Finance, the 2nd Respondent who lawfully is the accounting officer for the County Government mandated to settle debts. Instead, the affidavit of service clearly shows service was effected upon the County Secretary. That it was therefore clear that in applications for *mandamus* seeking to compel the satisfaction of a decree, it is the accounting officer of the relevant government department that is obliged to satisfy the decree. On the issue of the applicable interest to the principal sum, it was submitted that the power of the court to award interest is derived from Section 26 of the [*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3) which provides that: **“ 1).Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.** That the applicable rate is thus 14% per annum. The interest is simple and not compound as was set out in the **case of Barclays Bank (K) Limited vs William Mwangi Nguruki [2014] eKLR** where the Court of Appeal held that; **“The Respondent in his plaint prayed for interest at court rates. Interest at court rates is calculated on a simple interest and not on compounded basis. It is our finding that any interest due to the respondent must be calculated on a simple interest and not on compounded basis.”** The Respondent submitted that It is worth noting, that the tabulation of the courts interest at 14% was erroneously calculated making the interest exceeding the decretal sum awarded by the court to the ex-parte applicant. In conclusion the Respondents submitted that the applicant had not satisfied all conditions precedent to the grant of the order of mandamus since a valid decree obtained and Certificate of Order against the Government was issued on 10th November, 2022 was never served upon the Chief Officer Finance, the 2nd Respondent who lawfully is the accounting officer for the County Government mandated to settle debts. Therefore, the 2nd Respondent who is an accounting officer was unaware of the decree and/or Judgment the certificate of order. That in the interest of justice, fairness and equity we implore the Honorable court to find that in the instance case and having considered all relevant material and submissions, the Ex-parte applicant has not met the threshold for the issuance of the order of mandamus on a balance of probabilities as required in law. That the application does not meet the test for issuance of the equitable remedy of mandamus and they prayed that this Court be pleased to dismiss the same and to allow the Respondents sufficient time to factor monies in the County Government budget and satisfy the decree. That It is their prayer therefore, that the notice of motion application be dismissed as the ex-parte applicant’ has not met the threshold for issuance of the writ of mandamus. **ANALYSIS AND DETERMINATION** Having considered the application, the affidavits, the rival submissions and the authorities cited, the following issue arise for determination: Whether the Ex Parte Applicant has satisfied the legal threshold for the grant of the equitable remedy of an order of mandamus. The law governing the issuance of an order of mandamus is now settled. Mandamus is a public law remedy issued to compel the performance of a statutory duty where the Applicant has established a clear legal right, the Respondent owes a corresponding public duty, all conditions precedent have been fulfilled, there has been a demand and refusal or unreasonable delay in performance, and there exists no other efficacious remedy. The principles were authoritatively stated in Republic v Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 234 of 1996 and have consistently been applied in subsequent decisions including Republic v Principal Secretary, Ministry of Internal Security & Another ex parte Schon Noorani & Another [2018] eKLR. In proceedings seeking to enforce monetary decrees against Government entities, Section 21 of the Government Proceedings Act assumes central importance. The section prohibits execution against Government property but imposes a statutory obligation upon the accounting officer of the Government department concerned to satisfy a decree once a Certificate of Order Against the Government has been issued and served. Consequently, where Government fails to satisfy a lawful decree, mandamus becomes the appropriate remedy because the decree holder is otherwise left with a judgment incapable of execution. The Respondents have opposed the application principally on two grounds. First, they contend that the Certificate of Order Against the Government was not served upon the proper accounting officer. Secondly, they argue that the County Government has been unable to settle the decree because of budgetary constraints and delayed disbursement of funds from the National Government. There is no dispute that the Applicant obtained judgment in Migori CMCC No. 24 of 2020. Equally undisputed is that a Certificate of Order Against the County Government was extracted. The Applicant has annexed copies of the certificate together with an affidavit of service showing service upon the County Secretary through the County Attorney's Office. The Respondents do not dispute the existence of the decree nor do they dispute knowledge of the judgment. Indeed, the Replying Affidavit expressly acknowledges the existence of the pending bill and explains the reasons for non-payment. The Respondents depose that the debt has not been settled because of insufficient budgetary allocation and that payment would be made once funds become available. The question therefore is whether service upon the County Secretary rather than directly upon the Chief Officer Finance is fatal to the application. This court does not think so. First, the Respondents have not demonstrated any prejudice occasioned by the mode of service. The Replying Affidavit was sworn by the Chief Officer responsible for Finance himself, who unequivocally confirms awareness of the decree and even explains the budgetary process undertaken to settle pending bills. The Respondents therefore cannot genuinely maintain that they lacked notice of either the judgment or the Certificate of Order. Secondly, judicial review remedies are concerned with substance rather than technical procedural objections. Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. Once the County Government, through its legal department and its Chief Officer for Finance, became aware of the decree and acknowledged the outstanding liability, the objective of service contemplated under Section 21 of the Government Proceedings Act stood substantially fulfilled. Thirdly, this Court is persuaded by authorities holding that once the relevant County officials are aware of the decree and the statutory obligation to settle it, the court ought not deny relief merely because service was effected through another senior County office. The purpose of service is to notify the Government of its obligation. In the present case, that purpose was fully achieved. The Respondents' second ground is that payment has been delayed due to budgetary limitations and delayed release of funds by the National Government. That argument cannot defeat the Applicant's statutory right. The duty imposed by Section 21 of the Government Proceedings Act is mandatory. Financial constraints, budgetary limitations or delays in exchequer releases cannot extinguish a decree holder's right nor suspend the statutory obligation imposed upon Government accounting officers. It is incumbent upon the Government to make appropriate budgetary provision to satisfy lawful court decrees and they cannot rely indefinitely upon budgetary processes to avoid compliance. Were such an argument accepted, successful litigants against Government would perpetually hold unenforceable judgments, thereby undermining the constitutional guarantee of access to justice and the rule of law. Indeed, the Respondents themselves admit that they have neither challenged nor appealed against the judgment. They equally admit that the debt remains outstanding and merely seek additional time to pay. Such admission establishes the Applicant's entitlement to payment while simultaneously demonstrating prolonged delay in the performance of a statutory duty. This court is further satisfied that all the essential ingredients for mandamus have been established. The Applicant possesses a valid and unsatisfied decree together with a Certificate of Order Against the County Government. The statutory duty to satisfy that decree rests upon the County Government through its accounting officers. Demand for payment was made on several occasions without success. The Respondents have acknowledged the debt but have failed to discharge their statutory obligation. Because execution against County Government property is prohibited by law, the Applicant has no other effective remedy available. The Court therefore finds that the Applicant has established a clear legal right deserving protection and that the Respondents have failed, through prolonged delay, to perform a statutory public duty imposed upon them by law. The equitable nature of mandamus does not assist the Respondents. Equity follows the law and cannot be invoked to defeat a statutory obligation. The Respondents have not demonstrated any equitable bar such as fraud, illegality, laches attributable to the Applicant or any conduct disentitling the Applicant from relief. On the contrary, it is the Respondents who have continued to enjoy the benefit of withholding payment of an undisputed decree for several years. Accordingly, the Court is satisfied that the Applicant has met the legal threshold for the grant of the order of mandamus. In the end this court makes the following orders:- 1. The Notice of Motion dated 20th November 2023 is hereby allowed. 2. An order of **mandamus** is hereby issued compelling the Respondents, being the County officials charged with the statutory responsibility of management of the County's finances, to satisfy the decree in **Migori CMCC No. 24 of 2020** by paying the Applicant the decretal sum as contained in the Certificate of Order Against the County Government together with lawful interest as decreed until payment in full. 3. For avoidance of doubt, the interest payable shall be calculated in accordance with the judgment and decree of the trial court and Section 26 of the Civil Procedure Act, and where court rates apply, the interest shall be on a simple, not compound, basis. 4. The Applicant shall have the costs of these judicial review proceedings. It is so ordered. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 25TH DAY OFJUNE, 2026.** **ANNE ONG’INJO** **JUDGE HIGH COURT OF KENYA**