https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3509

Republic v County Secretary Nyamira County & 3 others; Mosagwe & 2 others (Ex parte Applicants) (Environment and Planning Judicial Review E001 of 2026) [2026] KEELC 3509 (KLR) (10 June 2026) (Judgment) Neutral citation: [2026] KEELC 3509 (KLR) Republic of Kenya In the Environment and Land Court at Nyamira Environment and Planning Judicial Review E001 of 2026 DO Ohungo, J June 10, 2026 Between Republic Applicant and The County Secretary Nyamira County 1st Respondent The Chief Officer, Finance, Economic Planning & ICT Services Nyamira County 2nd Respondent The Chief Officer, Roads, Transport, Public Works And Disaster Management Nyamira County 3rd Respondent The Cec Member, Finance, Economic Planning & Ict Services Nyamira County 4th Respondent and Hosea Nyandika Mosagwe Ex parte Applicant Milton Ndege Onyancha Ex parte Applicant Martin Kapseri Onsase Ex parte Applicant Judgment 1.Leave to commence these judicial review proceedings having been granted on 29th January2026, the Ex Parte Applicants filed Notice of Motion dated 26th February 2026. The following orders are sought in the application:a.An order of Mandamus to issue against the Respondents herein namely, The County Secretary, Chief Officer, Finance, Economic Planning & ICT Services, The Chief Officer, Roads, Transport, Public Works and Disaster Management, The County Executive Committee Member for Finance, Economic Planning & ICT Services to compel them to proceed and pay out the Decretal sum of Ksh. 1,468,000.00 and Ksh. 696,300.00 only, being General damages and costs in Nyamira ELC Court Case No. 21 of 2021: Hosea Nyandika Mosagwe & 2 Others versus The County Government of Nyamira, for a total sum of Ksh. 1,468,000.00 and Ksh. 696,300.00, the same being General damages and Costs, respectively whose judgment was delivered on the 16th day of November, 2021.b.That the court be pleased to set a timeline and/or duration within which the Respondents will settle the Decretal sum with interest accruing until the date of payment.c.That the applicant be at liberty to apply to this court for all necessary and/or consequent orders that this Honourable Court may deem fit and just to grant in the circumstances.d.Costs of the application be provided for. 2.The application is premised on the following grounds as listed on its face:a.The ex parte Applicants herein filed a Suit, the same being Nyamira ELC Court Case No. 21 of 2021: Hosea Nyandika Mosagwe & 2 Others versus The County Government of Nyamira.b.Judgment was delivered on the 16th day of November, 2021 wherein the said Plaint was allowed in favour of the Plaintiffs. Among other orders, the ex parte Applicants herein were awarded the sum of Kenya Shillings Kenya Shillings (sic) Two Million One Hundred and Sixty Four Thousand Three Hundred (Ksh. 2,164,300.00) only as General damages and costs of the Plaint.c.The ex parte Applicant subsequently proceeded to and filed his Bill of Costs which was taxed on the 2nd Day of August, 2024 and a Certificate of costs extracted and issued by the Deputy Registrar Officer (sic).d.The Decree, Certificate of costs and Certificate of Satisfaction Order have since been duly served upon the Attorney General’s offices, as required by Law.e.Despite such service, the Respondents have blatantly refused and or declined to satisfy the aforesaid Decretal amount.f.Owing to the above, it is apparent that the Respondents have deliberately refused and or ignored to settle the same hence the filing and or lodging of the instant Judicial Review proceedings.g.It is thus necessary and or imperative for the orders sought herein be granted. 3.The application is supported by an affidavit sworn by Hosea Nyandika Mosagwe who deposed that the above suit was filed and that judgment was delivered in their favour on 16th November 2021 for KShs 2,164,300. He annexed a copy of the decree and added that they filed a bill of costs which was taxed on 2nd August 2024 wherein it was awarded. He also annexed a copy of certificate of costs. 4.Mr Mosagwe further deposed that his advocate extracted a certificate of satisfaction order and that the decree, certificate of costs and certificate of satisfaction order were served upon the Respondents and the County Attorney. He annexed a copy of an affidavit of service and added that despite service, the Respondents had deliberately ignored or refused to settle the decretal sums. 5.The Respondents opposed the application through a replying affidavit sworn on 26th March 2026 by Jack Magara, the County Secretary and Head of Public Service in the County Government of Nyamira. He deposed that the application was misconceived, incompetent, and an abuse of the court process and that an order of mandamus was not available to the Applicant since conditions precedent for grant of such an order had not been satisfied. 6.He further deposed that an order of mandamus could only issue to compel the performance of a clear statutory duty which the Respondents had failed and/or refused to perform and that the Applicant had failed to demonstrate the existence of a specific legal duty imposed upon the Respondents requiring performance in the manner sought. 7.He also deposed that if the application related to payment of a decretal sum, the alleged debt was disputed or pending verification; the payment process was subject to public finance procedures and that funds had to be budgeted, appropriated and approved in accordance with the law before any disbursement was made. He added that the Respondents could not effect payment outside the set statutory framework. 8.Mr Magara also deposed that the Applicants had not demonstrated compliance with procedures required for settlement of claims against a County Government and that the application offended the Civil Procedure Rules as well as the law governing judicial review. 9.The application was canvassed through written submissions. The Ex Parte Applicants filed submissions dated 23rd March 2026 while Respondents filed submissions dated 26th March 2026. 10.It was submitted that on behalf of the Ex Parte Applicants that the procedure for execution of a decree against a County Government is provided for under Section 21 of the Government Proceedings Act and Order 2 of the Civil Procedure Rules. Relying on the cases of Republic vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) and Republic v Trans Nzoia County Public Service Board & 2 others; Sifuna & Sifuna Advocates (Exparte) (Judicial Review E011 of 2022) [2022] KEHC 17120 (KLR) (8 December 2022) (Judgment), it was submitted that the Ex Parte Applicants had demonstrated that there was judgment in their favour for KShs 1,468,000.00 and costs of KShs 696,300.00, that a decree, certificate of costs, certificate of satisfaction order and demand for payment had been served, yet payment had not been effected. The Court was therefore urged to allow the application. 11.On the part of the Respondents, it was submitted that the law on mandamus was settled in Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR, where the Court held that an order of mandamus compels the performance of a public duty which is imposed on a person or body where that person or body has failed to perform the duty. 12.It was further submitted on behalf of the Respondents that the Ex Parte Applicants had failed to satisfy the conditions for grant of mandamus or even to demonstrate unequivocal refusal to perform a duty and that the application was an attempt to bypass statutory procedures. Relying on the case of Republic v County Secretary, Nairobi City County & Another ex parte Wachira Nderitu Ngugi & Co. Advocates [2016] eKLR, it was submitted that the duty to pay is not absolute and is subject to statutory controls. 13.Further relying on the cases of Republic v Town Clerk, Kisumu Municipality Ex-Parte East African Engineering Consultants [2007] eKLR and Republic v Judicial Service Commission Ex-Parte Pareno [2004] eKLR, it was further submitted granting mandamus would disrupt budgetary planning as well as violate appropriation procedures and that judicial review remedies are discretionary. In conclusion, the Respondents urged that the application be dismissed with costs. 14.I have carefully considered the Notice of Motion, the affidavits and the submissions. The sole issue for determination is whether the reliefs sought should issue. 15.The Court of Appeal discussed the scope and efficacy of an order of mandamus in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR 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 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. 16.Thus, mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and issues where there is a duty owed to the Applicant with a corresponding clear right to the performance of the duty. See Republic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another [2018] eKLR. 17.Section 21 of the Government Proceedings Act provides as follows:(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.(2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.(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:Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.(4)Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.(5)This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party. 18.The Respondents have not denied that ELCC No. 21 of 2021 was filed by the Ex Parte Applicants against the County Government of Nyamira and that judgment was delivered in the matter on 16th November 2021 against the County Government of Nyamira as pleaded in the present application. I have perused the copies of the decree, certificate of costs, certificate of satisfaction order and demand letter dated 13th November 2025 which the Ex Parte Applicants have annexed. The Respondents have neither challenged the existence of the said documents nor the accuracy of their contents. They have denied that the documents were served upon the County Government of Nyamira, as is manifest from the annexed affidavit of service. 19.Under Section 21 (3) of the Government Proceedings Act, the Respondents have a legal duty to pay to the Ex Parte Applicants the sums specified in the decree and certificate of order against the Government, or as the Ex Parte Applicant have termed it, certificate of satisfaction order. The subject judgment was delivered over five and half years ago. Service of the decree and certificate of satisfaction order was formerly effected on 13th November 2025, as demonstrated in the affidavit of service. 20.The Respondents have sought refuge under what they referred to as public finance procedures. They have however not given any details as to what they have done to settle the decretal sum in line with any such procedures. They have not even offered any proposal as to how and when they intend to satisfy the decree. 21.The County Government of Nyamira is a level of government established pursuant to Articles 6 and 176 of the Constitution of Kenya, 2010. The Ex Parte Applicants cannot enforce the decree against it by attachment and sale of assets or even by way of committal to civil jail. See Permanent Secretary Office of the President Ministry of Internal Security & Another Ex Parte Nassir Mwadhidhi [2014] eKLR. Consequently, no other adequate remedy is available to the Parte Applicants to obtain satisfaction of the decree. 22.In view of the foregoing discourse, I find merit in Notice of Motion dated 26th February 2026. So as to accommodate any public finance processes, I will give the Respondents a period of 90 (ninety) days within which to settle the decretal sum. I make the following orders:a.An order of mandamus is hereby issued compelling the Respondents to pay to the Ex Parte Applicants the decretal sum of KShs 1,468,000.00 (One Million Four Hundred Sixty Eight Thousand) and KShs 696,300.00 (Six Hundred Ninety Six Thousand Three Hundred) being general damages and costs awarded in Nyamira ELC Case No. 21 of 2021: Hosea Nyandika Mosagwe & 2 Others versus The County Government of Nyamira, wherein judgment was delivered on 16th November 2021.b.The Respondents to settle the decretal sum together with interest within 90 (ninety) days from the date of delivery of this judgment.c.The Ex Parte Applicants shall have costs of these judicial review proceedings. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 10TH DAY OF JUNE 2026.D. O. OHUNGOJUDGEDelivered in the presence of:No appearance by the Ex Parte ApplicantsMs Moeche for the RespondentsCourt Assistant: B Kerubo