https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8567

Halima v County Secretary, County Government of Kericho & another (Judicial Review Miscellaneous Application E008 of 2025) [2026] KEHC 8567 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8567 (KLR) Republic of Kenya In the High Court at Eldoret Judicial Review Miscellaneous Application E008 of 2025 JM Chigiti, J June 19, 2026 Between Said Halima Applicant and The County Secretary, County Government of Kericho 1st Respondent The county Executive Member for Finance, County Government of Kericho 2nd Respondent Judgment 1.By way of an application dated 19th November 2025, the Applicant seeks the following orders;a.That an order of judicial review by way of mandamus do issue compelling the County Secretary - Uasin Gishu County and the County Executive Member/Officer for Finance - Uasin Gishu County being the 1stand 2nd Respondents herein respectively, to pay to the Applicant the sum of Kshs. 1, 179, 978.67/= together with accruing interest at court rates of 14% per annum from 28th July, 2023 in accordance with the Certificate of Order against the Government issued on 11thDecember, 2024 in Eldoret CMCC E240 Of 2022 Said Halima =vs= Ministry Of Health County Government Of Kericho.b.That in default of compliance with the order of mandamus and failure to pay the judgment debt in the sum of Kshs. 1, 179, 978.67/= together with accruing interest at court rates of 14% per annum from 28th July, 2023, the order of mandamus be deemed as sufficient notice under Section 30(1) of the Contempt of Court Act, 2016 to the persons holding the offices of the 1st and 2nd Respondent requiring them to show cause why contempt of court proceedings should not be commenced against them at the lapse of 30 days after service of the orders of mandamus.c.That in default of compliance with the order of mandamus and failure to pay the judgment debt in the sum of Kshs. 1,179, 978.67/= together with accruing interest at court rates of 14% per annum at the lapse of 30 days upon service of the order of mandamus and failing to show sufficient cause for non-compliance with the orders of mandamus, the Applicant be at liberty to commence contempt of court proceedings against the persons holding the offices of the Respondent for them to be personally summoned to court and be committed to civil jail for contempt of court.d.That costs of this Application be borne by the 1st and 2nd Respondents herein. 2.The Application is expressed to be brought under provisions of Order 53 Rule 1 (1) (2) and (3) of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. 3.The Application is premised on the grounds on the face of it and the averments of the Applicant in the affidavit sworn in support of the Application. 4.The deponent avers that the present application emanates from the judgment of the court delivered on 28th July, 2023 in her favour against the Ministry of Health, County Government of Kericho in the suit Eldoret CMCC E240 of 2022 Said Halima V Ministry Of Health County Government Of Kericho. Her advocates obtained a decree and certificate of costs dated 4th September, 2023 from the chief Magistrates court in the sum of Kshs. Kshs. 1, 179, 978.67/= together with interest at court rates of 14% per annum from the date of judgment till payment in full. She annexed and marked as SH-1 is a copy of decree and a certificate of cost. 5.Further, she urged that after delivery and entry of judgment the Judgment debtor and its insurer were notified that they were to offset the said decretal sum. She Annexed and Marked as SH-2, 3 & 4 a notice of entry of judgment and Certificate of Order and affidavit of service. She stated that several months have since lapsed when the decree was issued on the 4th September, 2023 and the Respondents have showed no intent or commitment to settle the same, necessitating this application. She urged that as a public entity, the Respondents are under a constitutional and legal obligation to comply with the law and with orders of a court of law by settling the decretal sum. 6.The deponent averred that responsibility in initiating and making payment lies on the County Secretary-Uasin Gishu County and the County Executive Member/Officer for Finance-Uasin Gishu County and their refusal to comply with the orders of the court is an abdication of public duty, a refusal to honour the rule of law and the promotion of bad governance in the management of public affairs. 7.She deponed that it is within the scope of the law that an execution process against government or county government or any arm thereof must make an application to compel the said respective personnel/officials in the county government body to do the Act and failure of which be committed to civil jail. Further, that the Respondents can also be summoned before the court to show cause for failure to offset the decretal sum. 8.She urged the court to allow the application as prayed. 9.The ex parte Applicants filed submissions dated22nd April 2026 where Counsel urged that the institution of judicial review proceedings in the nature of mandamus cannot be equated with execution proceedings. That in seeking an order of mandamus an applicant is not seeking relief against the Government, but to compel the Government official to do what the Government through the County Assembly has directed them to do. 10.Counsel urged that the law is settled that an order of Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. Reliance was placed on Republic v County Government of Narok (Defunct County Council of Narok) & 2 others; Gachara & 9 others (Exparte) [2023J KEHC17637 (KLR) where the court set out the test for mandamus. Counsel urged that the principles firmly apply to the present case. 11.Counsel submitted that the County Government of Uasin Gishu, having been served with a valid decree and a certificate of order against the government is under a statutory obligation under Section 21 of the Government Proceedings Act to satisfy the judgment. Further, that the Respondents’ continued inaction is not only unlawful but also deeply prejudicial to the applicant, who has no other recourse. Reliance was placed on Republic v Attorney General & Another exparte James Alfred Koroso, Nairobi HC JR Misc. Appeal No.44 of 2012. 12.Counsel submitted that to delay or indefinitely postpone enforcement under the guise of bureaucratic constraints is not only administratively irresponsible but also a violation of article 48 of the Constitution which guarantees the right to access to justice. Reliance was placed on the holding in Republic v Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) eKLR. 13.Counsel submitted that the right to access to justice entails more than access to courtroom, it includes timely and meaningful enforcements of judgments. That the Applicant reiterates that he has a legitimate right to enjoy the fruits of his judgment and that this right should not be thwarted by administrative inertia or institutional arrogance. Additionally, the Applicant has fully met the requirements to be granted an order of mandamus compelling the Respondents to pay the decretal sum forthwith. 14.Counsel cited Section 27 of the Civil Procedure Act and Cecilia Karuru Nsayu v Barclays Bank of Kenya & another (2016) eKLR urging the court to allow the Application as prayed. 15.The issues that arise for determination are; Whether the court should issue orders for Mandamus 16.The nature of Mandamus orders sought in this case are, in a nutshell, to compel the Respondents to perform a public duty by satisfying the judgment and decree in ELDORET CMCC E240 of 2022 Said Halima V Ministry Of Health County Government Of Kericho. 17.In Republic v Kenya National Examinations Council ex parte Gathengi & 8 Others Civil Appeal No 234 of 1996. The Court of Appeal cited, with approval, Halsbury’s Law of England, 4th Edn. Vol. 7 p. 111 para 89 thus:“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 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." 18.Section 21(4) of the Government Proceedings Act provides as follows;Save as provided in this section, no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Government of any money or costs, 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. 19.However, Judicial Review proceedings are not considered to be in the nature of execution proceedings or criminal proceedings. In Republic v Attorney General & another Exparte James Alfred Koroso [2013] KEHC 90 (KLR) G.V Odunga, (as he then was), expressed himself as follows;In mandamus cases it is recognised that when statutory duty is cast upon a Public Officer in his official capacity and the duty is owed not to the State but to the public any person having a sufficient legal interest in the performance of the duty may apply to the Courts for an order of mandamus to enforce it. In other words, mandamus is a remedy through which a public officer is compelled to do a duty imposed upon him by the law. It is in fact the State, the Republic, on whose behalf he undertakes his duties, that is compelling him, a servant, to do what he is under a duty, obliged to perform. 20.In Republic v Town Clerk, Kisumu Municipality, Ex Parte East African Engineering Consultants [2007] 2 EA 441 the court held;In the present case the ex parte applicant has no other option of realising the fruits of his judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that he has been awarded is realised. Unless something is done he will forever be left baby-sitting his barren decree. This state of affairs cannot be allowed to prevail under our current Constitutional dispensation in light of the provisions of Article 48 of the Constitution which enjoins the State to ensure access to justice for all persons. Access to justice cannot be said to have been ensured when persons in whose favour judgements have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgement due to roadblocks placed on their paths by actions or inactions of public officers. Public offices, it must be remembered are held in trust for the people of Kenya and Public Officers must carry out their duties for the benefit of the people of the Republic of Kenya. To deny a citizen his/her lawful rights which have been decreed by a Court of competent jurisdiction is, in my view, unacceptable in a democratic society. Public officers must remember that under Article 129 of the Constitution executive authority derives from the people of Kenya and is to be exercised in accordance with the Constitution in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.” 21.In Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, the Court stated:“An order of mandamus is a command issued by the High Court to compel the performance of a public duty which is imposed by statute, where the person or body has failed to perform that duty. Once a judgment is entered against the Government and a certificate of order is issued, the obligation to pay becomes a statutory duty.” 22.In Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR expressed herself as follows:“In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon Attorney General, Section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues.” [Emphasis mine]. 23.The preconditions are;a.A valid decree has been obtained.b.A certificate of costs andc.A certificate of order against the government. One was issued on 28th July 2023. 24.In the instant suit I find that all the conditions precedent to the granting of the order have not been met; 25.Despite the averment that the certificate of order was served and that an affidavit of service was annexed to this effect, I have perused the pleadings and no such proof is available. 26.Being one of the essential conditions precedent, the same is instrumental to the granting of the orders of mandamus. 27.In Muchelule & 5 others v Attorney General & 2 others (Judicial Review Cause E044 of 2026) [2026] KEHC 6855 (KLR) (Judicial Review) (19 May 2026) (Judgment), the court, while considering issues of service stated:It is settled law that the statutory duty on the part of government to settle a judgment or decree of a court arises only after the government has been served with the certificate of order against it. Without being served with the said certificate, government does not incur the duty to pay or satisfy the judgment or decree, and, as a consequence, a mandamus order would not be available, since mandamus is meant to compel performance of a statutory or legal duty. That is the purport and effect of section 21(3)(4) of the Government Proceedings Act. 28.In that instance, the issue was resolved by the filing of a Supplementary Affidavit which provided the affidavit of service as evidence that there was service. In the present case, there is no proof that the certificate of costs was served on the Respondents. 29.Accordingly, the Application fails in the circumstances as the court cannot compel a party who has not, at the very least, been served with the certificate of costs to comply with the orders. 30.In the premises, the Application is dismissed, each party shall bear its own costs. Delivered, Dated and Signed on This 19th Day of June 2026 at Eldoret High Court……………………………J. M. CHIGITI (SC)JUDGE