https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9603

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA MACHAKOS** **HCJR APPL. NO. E005 OF 2025** **REPUBLIC …………………………………………….….…..APPELLANT** **VERSUS** **MINISTRY OF PLANNING& NATIONAL DEVELOPMENT ……….……………..1ST RESPONDENT** **THE ATTORNEY GENERAL…………………..……2ND RESPONDENT** **AND** **NELSON MAWEU MBITHI alias NELSON MAWEU alias** **NELSON MBITHI alias NELSON MUOKI..EX-PARTE APPLICANT** **RULING** 1. This application is a Judicial Review application filed by Nelson Maweu Mbithi, the Exparte Applicant, before the High Court of Kenya at Machakos under Judicial Review Application No. E 005 of 2025. 2. The application is brought under several legal provisions, including Articles 40, 47, 48, and 50 of the Constitution of Kenya, which guarantee rights to property, fair administrative action, access to justice, and a fair hearing. 3. It is also filed pursuant to Sections 8 and 9 of the Law Reform Act, Cap 20, Laws of Kenya, and Order 53 of the Civil Procedure Rules, 2010, which provide the procedural framework for judicial review applications. 4. The substantive prayer sought is for leave to apply for an order of mandamus, which is a prerogative order compelling a public authority to perform a public duty. 5. The application is anchored on the grounds that the Applicant was the successful claimant in Machakos SCCC No. E816 of 2023, where judgment was delivered on 18th December 2023 in his favour for a principal sum of Kshs 831,984, plus costs and interest, making a total decretal sum of Kshs 951,236 as certified on 3rd May 2024. 6. The Applicant states that the decree and the certificate of order against the government were duly extracted and served upon the Respondents, namely the Ministry of Planning and National Development and the Attorney General, on 8th April 2024 and 8th May 2024 respectively, in strict compliance with the Government Proceedings Act, Cap 40. 7. Despite this lawful service, the Respondents have failed, refused, or neglected to settle the decretal sum, thereby denying the Applicant the fruits of his legally obtained judgment. 8. The Applicant contends that under Section 21 of the Government Proceedings Act, the government is legally obligated to settle any judgment debt against it once a certificate of order has been issued and served. 9. He further asserts that he has exhausted all other available enforcement remedies and has no alternative recourse but to seek an order of mandamus from the court. 10. He maintains that the grant of the orders sought will not prejudice the Respondents and that it is in the interest of justice and fairness that the application be allowed. 11. The application is supported by a sworn affidavit of Nelson Maweu Mbithi, who affirms that he is the Exparte Applicant and the original claimant in the small claims case. 12. He reiterates the details of the judgment and the total amount payable, and confirms that he has been informed by his advocates, a fact he genuinely believes to be true, that the decree and certificate of order were duly served on the Respondents on the specified dates. 13. He depones that despite such service, the Respondents have failed to settle the debt, and he emphasizes the urgency of the matter by stating that he is scheduled to undergo a medical surgery for the removal of an implant fixed at the site of a radial bone fracture, and the awarded sum included future medical expenses which he urgently needs to finance the procedure. 14. He repeats the legal advice from his advocates that under Section 21 of the Government Proceedings Act, the government is obliged to pay, and that all other enforcement avenues have been exhausted. 15. He further states that he has been advised that the orders sought will not prejudice the Respondents and that it is in the interest of justice that the application be allowed. 16. The respondent filed grounds of opposition to the judicial review application and stated as follows; 17. ***That the application is misconceived, untenable, bad in law, and an abuse of the court process, and the prayers sought are incapable of being granted by a court of law.*** 18. ***That the applicant has failed to comply with the provisions of section 21 of the Government Proceedings Act, Cap 40 Laws of Kenya.*** 19. ***That the reasons set forth in the application are a mere afterthought, and the court is unable to grant the same because the applicant is guilty of non-joinder of parties, as the Accounting Officer of the 1st Respondent is not a party to the suit.*** 20. ***Thathe application is an abuse of the court process because it fails to demonstrate that the applicant complied with the requirements set out in the Government Proceedings Act to facilitate the payment of the decretial sum, and that the accounting officer in the affected Ministry has failed to comply with payment.*** 21. ***That the application is full of falsehoods, hearsay, and unfounded allegations, and is merely a grope in the dark.*** 22. ***That the application is bad in law and should be dismissed with costs to the respondents.*** 23. The parties filed written submissions as follows;The applicant submitted that the submissions are made in support of his Notice of Motion dated 21st March 2025 and in opposition to the Respondents' Grounds of Opposition dated 30th April 2025. 24. The application seeks an order of mandamus to compel the Respondents, namely the Ministry of Planning and National Development and the Attorney General, to satisfy a valid and subsisting decree issued in Machakos SCCC No. E816 of 2023, which is now ripe for enforcement. 25. The Applicant argues that the application is competent and properly before the court, and that he has complied with Section 21 of the Government Proceedings Act by serving the Certificate of Order against the Government on the Attorney General on 29th April 2024 and 9th May 2024, which constitutes sufficient compliance. 26. He contends that the court has jurisdiction to issue mandamus, as the Respondents have a clear public legal duty to satisfy the decree, a duty they have failed to perform despite demand and due process. 27. The Applicant refutes the Respondents' claim that the application is an abuse of court process, asserting that seeking to enforce a valid judgment through judicial review is a constitutional and lawful remedy, and that it is a mockery of justice for a judgment creditor to be denied the fruits of a valid decree because the Government hides behind bureaucracy. 28. On the alleged failure to enjoin the accounting officer, the Applicant argues that the Government Proceedings Act requires service on the Attorney General, not joinder of individual officers, and that the Government is one entity; furthermore, Order 53 of the Civil Procedure Rules does not require such joinder. 29. The Applicant maintains that the Respondents' objections are based on technicalities and a misapprehension of the law, and that compelling them to perform a public duty cannot be prejudicial, whereas the Applicant continues to suffer a denial of justice. 30. He emphasises that the failure to satisfy the decree violates constitutional principles including the rule of law, accountability, the right to fair administrative action, access to justice, and the obligation to administer justice without delay. 31. The Applicant relies on **Republic v Town Clerk, Kisumu Municipality Ex parte East African Engineering Consultants [2007] eKLR** for the proposition that it is not enough for the Government to say it has not budgeted for payment of a debt, as that argument is legally and morally unsustainable. 32. He also cites **Republic v Attorney General & Another Ex parte Stephen Waynee Roki [2016] eKLR,** where it was observed that it is the obligation of the Government to settle judgments entered against it, and if it fails, courts have the power to compel it through mandamus. 33. He further relies on **Republic v Kenya National Examinations Council Ex parte Gathenji & 9 Others [1997] eKLR,** where the Court of Appeal held that mandamus is issued to compel performance of a statutory duty which has become due. 34. He cites **Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR,** in which Lenaola J stated that a party with a judgment against the State cannot be told to go back to court to sue the accounting officer, as the Government is one entity, and that the Government, like any litigant, is bound by the law and must obey court orders. 35. He also refers to **Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka [2021] eKLR**, where the court held that it is a mockery of justice for a judgment creditor to be denied the fruits of a valid decree because the Government hides behind bureaucracy and red tape. 36. Additionally, he relies on **Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security [2012] eKLR,** where Odunga J emphasised that the State is not above the law and public officials must comply with court judgments, with failure inviting judicial intervention. 37. The Applicant concludes that he has done all that the law requires and that the court must intervene to protect the dignity of its own orders. 38. He therefore respectfully urges the court to issue an order of mandamus compelling the Respondents to settle the decreetal sum of Kshs. 951,236/= as decreed in Machakos SCCC No. E816 of 2023, to award costs of the application to the Applicant, and to grant such further or other relief as may be just in the circumstances. 39. The respondents, comprising the Ministry of Planning & National Development and the Attorney General, have filed submissions in response to the ex parte applicant's Notice of Motion dated 21st March 2025, which seeks an order of mandamus compelling them to settle a decretal sum of Kshs. 951,236 arising from Machakos SCCC No. E816 of 2023, as per the certificate of order against the government issued on 3rd May 2024. 40. The respondents raise several preliminary objections, arguing that the application is incompetent primarily due to the applicant's failure to comply with Section 21 of the Government Proceedings Act, which they contend places a statutory duty on the accounting officer of the relevant government department to satisfy any judgment or order against the government. 41. They submit that in seeking to enforce a judgment against the government, the accounting officer of the Ministry of Planning and National Development is a necessary party, and since the applicant has not enjoined the Principal Secretary or Permanent Secretary of that ministry, the Notice of Motion is fatally defective and cannot succeed. 42. The respondents emphasize that the Attorney General, who has been named as the 2nd respondent, is not the accounting officer and his role is confined to providing legal representation to the national government under Article 156 of the Constitution, and therefore he cannot be compelled to pay the decretal sum. 43. The respondents rely on the case of **Republic v Permanent Secretary Office of the President Ministry of Internal Security & another Ex-Parte Nasir Mwandihi [2014] eKLR** for the proposition that mandamus cannot lie where the duty of the public officer is neither defined nor established. 44. Further they cite **June Seventeen Enterprises Limited v Cabinet Secretary for Ministry of Interior and Coordination of National Government & 2 others [2017] eKLR** to support their argument that orders of mandamus cannot be enforced when the accounting officer is not a party to the proceedings. 45. On the substantive question of whether the orders of mandamus ought to be granted, the respondents submit that even if the court were to consider the application competent, the orders sought are untenable because they would be unenforceable and there would be no identifiable party to hold accountable for non-compliance. 46. The respondents reiterate that mandamus is a command directed to a person, corporation, or inferior tribunal requiring them to perform a public duty, as observed in **Kenya National Examination Council v Republic [1997] eKLR.** 47. However, in the present case, the duty sought to be compelled falls outside the performance of the Attorney General's official functions. 48. Consequently, the respondents urge the court to dismiss the Notice of Motion with costs, asserting that it is devoid of merit. 49. The issues for determination in this application are as follows; 50. ***Whether the Applicant has demonstrated that the Respondents owe a public duty to settle the decretal sum, thereby justifying the grant of an order of mandamus.*** 51. ***Whether the application is fatally defective for non-joinder of the accounting officer of the 1st Respondent.*** 52. ***Whether the Applicant is entitled to the order of mandamus.*** 53. The court has carefully considered the Notice of Motion dated 21st March 2025, the supporting affidavit of Nelson Maweu Mbithi, the Respondents' Grounds of Opposition, and the written submissions filed by both parties. 54. The substantive prayer before the court is for an order of mandamus to compel the Respondents to settle a decretal sum of Kshs 951,236 arising from Machakos SCCC No. E816 of 2023, as certified on 3rd May 2024. 55. The nature and scope of the remedy of mandamus is well settled in Kenyan law. 56. An order of mandamus compels the performance of a public duty imposed on a person or body by statute, where that person or body has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. 57. Mandamus will issue where there is a specific legal right and no specific legal remedy for enforcing that right, or where an alternative remedy is less convenient, beneficial, and effectual. 58. The Applicant has satisfied the threshold established for the issue of the mandamus order. 59. He obtained a valid judgment in Machakos SCCC No. E816 of 2023, extracted the decree, and obtained a certificate of order against the government. 60. The certificate was duly served upon the Attorney General on 29th April 2024 and 9th May 2024, in compliance with the Government Proceedings Act. Section 21 of the Government Proceedings Act, Cap 40, imposes a statutory obligation on the government to settle judgment debts once a certificate of order has been issued and served. 61. The Respondents have failed to discharge this duty despite lawful service and demand, and the Applicant has exhausted other available enforcement remedies. 62. The Respondents' primary objection is that the application is incompetent for failure to enjoin the accounting officer of the Ministry of Planning and National Development as a party. 63. This objection lacks merit. A party with a judgment against the State cannot be told to go back to court to sue the accounting officer, as the Government is one entity, and that the Government, like any litigant, is bound by the law and must obey court orders. 64. The requirement under the Government Proceedings Act is service of the certificate of order on the Attorney General, not joinder of individual accounting officers. 65. The Attorney General is the proper legal representative of the national government in such matters under Article 156 of the Constitution. 66. The Respondents' reliance on the non-joinder argument is therefore misplaced. 67. The Respondents also contend that the Attorney General is not the accounting officer and cannot be compelled to pay the decretal sum. 68. While it is correct that the Attorney General's primary role is legal representation, the order of mandamus can properly issue against the Attorney General as the legal representative of the Government, directing compliance with the statutory duty under Section 21 of the Government Proceedings Act. 69. The order commands the performance of a public duty, and the Government is one entity for purposes of such compliance. 70. This court finds that the Applicant has established all the elements necessary for the grant of mandamus: a clear legal right to the decretal sum, a corresponding public duty on the Respondents to satisfy the judgment, and a failure to perform that duty despite due demand. 71. The delay in settlement undermines the rule of law and contravenes the Applicant's constitutional rights to fair administrative action and access to justice under Articles 47 and 48 of the Constitution. 72. The urgency of the Applicant's need for the funds to finance a medical procedure further weighs in favour of granting the relief sought. 73. Accordingly, this court makes the following orders; 74. ***THAT an order of mandamus be and is hereby issued compelling the Respondents, jointly and severally, to forthwith pay the Applicant the decretal sum of Kshs 951,236 as certified in the certificate of order against the government issued on 3rd May 2024 in Machakos SCCC No. E816 of 2023.*** 75. ***THAT the Respondents shall bear the costs of this application.*** 76. ***THAT in default of compliance with Order 1 above within sixty (60) days from the date hereof, the Applicant shall be at liberty to apply to this court for further orders.*** 77. Orders to issue accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026** **ASENATH ONGERI** **JUDGE** **In the presence of** Mr Wekesa for the Applicant No appearance for the Respondent Chrispin - Court Assistant