https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11901

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **JUDICIAL REVIEW APPLICATION NO. E018 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 ORDER 53(1) OF THE CIVIL PROCEDURE RULES** **AND** **IN THE MATTER OF EXECUTION OF A DECREE FOR KSHS. 150,000/=** **BETWEEN** **REPUBLIC............................................................................................APPLICANT** **VERSUS** **THE COUNTY SECRETARY MIGORI COUNTY GOVERNMENT…….1ST RESPONDENT** **THE CHIEF OFFICER FINANCE MIGORI COUNTY…………… 2ND RESPONDENT** **AND** **PATRICK M. SIRINCHA** **(Suing as Chairman of Nyaroha Self Help Group) ……………. EX PARTE APPLICANT** **JUDGMENT** Before this Court is the Ex Parte Applicant’s Chamber Summons application dated 20th November 2023 seeking an order of mandamus to compel the Respondents, to honour the decree of the court in Migori CMCC No.25 of 20320 and pay the exparte Applicant the decretal sum of Kshs7,685,597/= together with further interest from November 2023 till payment in full. The Ex-Parte Applicant also sought for costs of the application. The application is premised upon the grounds set out in its face and Verifying Affidavit sworn by the Applicant on 20th November 2023. The Respondents opposed the application vide Replying Affidavit sworn by Dr, John Achuora on 10th July 2024 to the effect 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 heard by way of written submissions. The Applicant’s submissions are dated 2nd December 2025 and are to the effect that the judgment against the Respondent was delivered in 2017 and that several demand letters since then and particularly the ones dated 25th January 2025, 1st February2025 and 21st March 2025 had been ignored by the Respondents who have admitted being indebted to the Applicant and the only excuse was that they had not received budgetary allocation to liquidate the decretal sums. The Applicant’s Counsel submitted that they had met all the factors necessary to warrant the court to issue an order of mandamus compelling the Respondents to pay the decretal sums. The Applicant the holdings in the case of Chumo vs County Government of Nairobi & Others where it was held that the effect of the provisions of Section 21(4) of the Government Proceedings Act 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 judgment made by the court against the said Department. The Applicant also relied on the holding in Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others, Civil Appeal No. 266 of 1996 (sometimes erroneously cited as Civil Appeal No. 234 of 1996), where it was held as follows: “The order of mandamus is of a 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 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 redress is less convenient, beneficial and effectual.” The 1st and 2nd Respondents filed joint submissions dated 8th January 2026 together with grounds of opposition of even date and identified issues for determination as:- 1. whether or not the prayers in the Ex-parte applicants’ application should be allowed, the salient issues ought to be explored: - 1. Whether the application has been brought against the correct parties? 2. Whether the elements of writ of mandamus orders have been proved to the requisite standard against the `1st and 2nd Respondents. On the issue as to Whether the application has been brought against the correct parties the Respondents referred to Section *21(3) of the Government Proceedings Act* which provides 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...” They submitted 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. That 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. 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. The Respondent submitted that in ***Republic v Kisii County Government Ex-Parte Peter Kaunda Nyamosi & 2 others [2018] eKLR,*** 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 Respondent Counsel also supported its view with the case of **Soloh Worldwide (supra) which held the same position as follows:** 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…” It was also submitted that Section 44(3) outlines the duties of a County Secretary as follows: - (3) The county secretary shall— 1. be the head of the county public service; 2. be responsible for arranging the business, and keeping the minutes, of the county executive committee subject to the directions of the executive committee; 3. convey the decisions of the county executive committee to the appropriate persons or authorities; and 4. 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 whether the elements of the writ of mandamus had been proved to the requisite standard against the 1st and 2nd Respondents, it was submitted that contempt of cout has been defined to mean conduct or action that defies or disrespects the authority of the court and hence in Sheila Cassat Issenbera & Another Vs Antony Macatha Kinyanjui 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). The Respondent submitted further that s to the elements that must be proved for an alleged contemnor to be held to be in contempt of court, 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. Similarly, the Respondents cited the holding in the case of ***Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR Mativo, J (as he then 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: 1. the terms of the order, 2. Knowledge of these terms by the Respondent, 3. 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: - * 1. the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; 2. the defendant had knowledge of or proper notice of the terms of the order; 3. the defendant has acted in breach of the terms of the order; and 4. the defendant's conduct was deliberate….” It was further submitted that it is plain that the 2nd Respondent had 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 is 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. # In conclusion the Respondents Counsel submitted that in the instant case, the applicant has 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 12th September, 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 they implored the 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. It was prayed 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 issues arise for determination: 1. Whether the Applicant has satisfied the legal requirements for the grant of an order of mandamus. 2. Whether failure to serve the Chief Officer Finance or the accounting officer is fatal to the application. 3. Who should bear the costs of the application. On Whether the Applicant has established the conditions for the grant of mandamus The principles governing the grant of an order of mandamus are now well settled. Mandamus issues to compel the performance of a public duty imposed by statute where the Applicant has established a legal right, the respondent has failed or refused to perform that duty and there exists no other equally convenient remedy. The Court of Appeal in **Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others** explained that mandamus is intended to compel the performance of a public duty where a legal duty exists and there is no other adequate remedy. Equally settled is the position under Section 21 of the Government Proceedings Act that once a decree has been issued against Government or a County Government, execution by attachment is prohibited. The successful litigant is instead entitled to obtain a Certificate of Order Against the Government, after which the accounting officer assumes a statutory obligation to satisfy the decree. The material before this Court demonstrates that judgment was entered in favour of the Applicant. A decree and Certificate of Order Against the Government were issued. The Applicant has also exhibited demand letters addressed to the Respondents over a prolonged period. The Respondents do not dispute the existence of the judgment or the decretal amount. Indeed, their opposition is not that the debt is not due but rather that payment has not been effected because the proper accounting officer was allegedly not served and because budgetary allocation has not been made. This Court cannot accept budgetary allocation as a lawful justification for continued non-payment of a lawful court decree. Once judgment has been entered against a County Government and the statutory process under Section 21 has substantially been complied with, the accounting officer is under a mandatory legal obligation to satisfy the decree. Internal administrative or budgetary arrangements cannot override or suspend a judicial decree. To hold otherwise would permit public bodies to defeat court judgments indefinitely, contrary to the rule of law and provisions of Article 48 and Article 159 of the Constitution. On whether service upon the County Secretary is fatal, the Respondents strongly argued that service ought to have been effected upon the Chief Officer Finance or the accounting officer designated under Section 148 of the Public Finance Management Act. There is no dispute that Section 21(3) of the Government Proceedings Act places the statutory obligation upon the accounting officer of the relevant government entity. The authorities cited by the Respondents correctly recognize that the accounting officer bears the legal responsibility for settlement of decretal sums. However, the Court is equally mindful that judicial review remedies are intended to achieve substantive justice and not to elevate procedural technicalities over the enforcement of lawful court decrees. The Respondents have not denied knowledge of the decree. Indeed, they filed detailed responses acknowledging both the judgment and the decretal amount. They also admitted that payment has not been made because of lack of budgetary allocation. Their defence is therefore not founded upon lack of knowledge but upon an internal administrative process. More importantly, if indeed the County Secretary was not the proper recipient of the Certificate of Order Against the Government, nothing prevented the County Government from forwarding the documents to the appropriate accounting officer within the County Government structure. County Government departments cannot avoid statutory obligations by relying on internal administrative arrangements unknown to decree holders. The Court adopts the reasoning expressed in decisions including **Republic v Kisii County Government Ex Parte Peter Kaunda Nyamosi & 2 Others [2018] eKLR**, where it was observed that the statutory obligation remains enforceable against the accounting officer notwithstanding procedural issues regarding designation. The Court further agrees with the reasoning that judicial review proceedings should not be defeated merely because the wrong office bearer has been named where the public body has full knowledge of the decree and the legal duty remains outstanding. In the present case, the Respondents have not demonstrated any prejudice arising from service upon the County Secretary. They have participated fully in these proceedings and have acknowledged the existence of the decretal sum. The Court therefore finds that the objection based on service is not sufficient to defeat an otherwise meritorious application. This court therefore finds that the Applicant has established that, there exists a valid judgment and decree against the County Government; a Certificate of Order Against the Government was issued; repeated demands for payment have been made over a considerable period; the decretal amount remains unpaid; and no other effective remedy exists because execution against Government is barred by law. This Court is therefore satisfied that the statutory threshold for the grant of an order of mandamus has been met. Accordingly, the Notice of Motion dated 8th April 2024 is hereby allowed as follows: 1. **An order of Mandamus is hereby issued** compelling the accounting officer of the County Government of Migori, being the officer legally responsible under Section 21 of the Government Proceedings Act and the Public Finance Management Act, to satisfy the decree in Migori CMCCC No. 25 of 2020 by paying the Ex Parte Applicant the decretal sum of **Kshs.7,685,597/=** together with the accrued interest as contained in the decree until payment in full within **sixty (60) days** from the date of this judgment. 2. In default of compliance within the stipulated period, the Ex Parte Applicant shall be at liberty to institute appropriate proceedings against the accounting officer for enforcement of this order in accordance with the law. 3. The Ex Parte Applicant shall have the costs of this application. It is so ordered. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 25TH DAY OFJUNE, 2026.** **ANNE ONG’INJO** **JUDGE HIGH COURT OF KENYA**