https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3910

**REPUBLIC OF KENNYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELC JUDICIAL REVIEW NO. E006 OF 2026** **IN THE MATTER OF AN APPLCATION FOR A JUDICIAL REVIEW ORDER OF MANDAMUS, DECLARATONS, COMPENSATORY ORDERS, INTERESTS AND COSTS** **AND** **IN THE MATTER OF ENFORCEMENT OF JUDGMENT, AWARD, ORDERS ISSUED BY LAND ACQUISITION TRIBUNAL IN FAVOUR OF THE APPLICANT AGAINST THE NATIONAL IRRIGATION AUTHORITY, AN ENTITY OF THE GOVERNMENT** **BETWEEN** **SOLOMON OWITI AKURA.............................................APPLICANT** **VERSUS** **CHIEF EXECUTIVE OFFICER, NATIONAL IRRIGATION AUTHORITY...........................................................1ST RESPONDENT** **NATIONAL IRRIGATION AUTHORITY...................2ND RESPONDENT** **JUDGMENT** 1. The Applicant filed an Originating Motion dated 30th January 2026. She brought it under Certificate of Urgency. It was expressed to be brought under Articles 23 (2) and (3); 47 (1) (2); 50 (1); and 159 (2) (d) of the Constitution of Kenya, 2010, Section 13(5) of the Environment and Land Court Act, Section 7 of the Fair Administrative Actions Act, Section 21 (3) of the Government Proceedings Act, and Rule 11 of the Fair Administrative Action Rules 2024. She sought orders that: 2. …Spent 3. It be declared that the respondents are bound but are in violation of the Articles 10, 47 (1) and 232 of the Constitution and are in breach of the Fair Administrative Actions Act and section 21(3) of the Government Proceedings Act which places an obligation on the respondents to act expeditiously, efficiently and lawfully for failure to give any reasons for such inaction and conduct the appellant, is at violation of his rights under article 47 (2) of the Constitution and section 4 (2) and (3) of the Fair Administrative Actions Act. 4. It be declared that failure, refusal and neglect, and absent any reasons to comply with the with the provisions of Section 2(3) of the Government Proceedings Act by the respondents and to pay the applicant the costs in LAT dispute no. E006 of 2024 as certified in the decree and certificate of costs on record and as specified in the certificate of order for costs against the government dated 16th April 2025 as issued and served on the respondents is a violation of the applicant’s right to fair administrative actions , violates the constitution and statute law. 5. Judicial review order of mandamus be issued in favour of the applicant Solomon Owiti Akura directed at and compelling 1) the 1st respondent Chief Executive Officer as the accounting officer of the National Irrigation Authority and 2) the 2nd respondent, the National Irrigation Authority jointly and severally to, forthwith pay the applicant the sum of Kshs. 356,675 /=, being the certified costs and interests in terms of the judgment and decree of the Land Acquisition Tribunal dated 14th June 2024 issued in Land Acquisition Tribunal Dispute no. TRLAP No. E006 of 2024 and the subsequent ruling and order dated 15th April 2025 an as specified in terms of the certificate of order and costs against the government dated 16th April 2025. 6. The respondents be ordered to pay interest on the sum of KShs. 356,675/= at the rate of 14 % per annum with effect from 16th April 2025, being the date of the certificate of order against the government until payment shall be made in full. 7. The applicant be awarded compensatory damages for violation of the right under Article 47 (1) of the Constitution and for breach of the requirements of the fair administrative actions in relation to the payment of the costs on LAT dispute no. E006 of 2024. 8. Costs of the application be provided for and be paid to the applicant as the court shall in its discretion order and direct. 9. The Originating Motion was supported by the various grounds set on the face of it as well as the depositions contained in the Affidavit sworn by the Applicant, Solomon Owiti Akura. 10. Its grounds were that there was a judgment and order for costs against the Respondents, which judgment was entered favour the Applicant in Land Acquisition Tribunal Case No. TRLAP E006 of 2024 on 14th June 2024. The Applicant stated that the Respondents owe her of Kshs. 356,675 /=, being the costs awarded as at 16th April 2025 when the certificate of order and costs against Government were issued. This amount, the Applicant states, continues to attract interest at the rate of 14 percent per annum. 11. The applicant maintained that the Respondents, despite being obligated to pay the afore–stated amount, had neglected, refused or declined to pay it hence the instant application. 12. The Applicant also maintained that he did not have another avenue through which he could enforce the judgment and decree of the Tribunal since it declined to enforce its judgment, citing lack of jurisdiction. That was in a ruling delivered on 8th March 2025. 13. Further, the Applicant stated that the judgment and decree of the Tribunal had never been set aside and or varied, even after the parties herein preferred appeals before Nairobi ELC Civil Appeal No. E090 of 2024 and Nairobi ELC Civil Appeal No. E097 of 2024. He stated that the Respondents never challenged the costs and interest awarded by the Tribunal in Tribunal Case No. E006 of 2024. 14. It was the Applicant’s further contention that he applied for a Certificate of Order against Government, dated 16th April 2025, from the Tribunal and served it upon The Chief Executive Officer (and accounting officer) of the 2nd Respondent, the 2nd Respondent as well as the Attorney General as required by the law. 15. The Applicant stated that he had not received any payment from the Respondents despite several demands issued and served upon the Respondents to honour their obligations. He maintained that she had satisfied all the conditions for the grant of the orders sought, as set out in Section 21 of the Government Proceedings Act, including making prior demand for payment and allowing the Respondents reasonable time to comply with the demand. In the circumstances, the Applicant prayed that this court grants the prayers set out in her application. 16. Annexed to the Supporting Affidavit were the following documents: certificate of order against the Government, dated 16th April 2024; a copy of the Land Acquisition Tribunal judgment dated 8th December 2025; a copy of the judgment dated 14th June 2024; a copy of the ELC Judgment and resultant decree; a copy of the ruling of the Deputy Registrar dated 20th March 2025 showing the taxed costs at of Kshs. 356,675 /=. Other documents the Applicant filed include a copy of Certificate of Costs dated 15th April 2025; a copy of Demand served upon the Respondents; evidence of service of the above stated demand letter; and a notice of intention to sue. **Response** 1. The Respondents filed Grounds of Opposition dated 6th March 2026. Their opposition to the instant judicial review application was based on several grounds. Firstly, they stated that the application was premature and procedurally defective for failure to comply with the mandatory provisions of Section 21 of the Government Proceedings Act. To this end, they stated that the applicant had not obtained and served a Certificate of Order against the Government upon the Honourable Attorney General, which is a prerequisite before any execution or enforcement proceedings could be instituted for an order of mandamus to issue against a Government entity. 2. Secondly, the Respondents contended that Honourable Attorney General had not been joined as a necessary party in the instant proceedings, contrary to Sections 12 and 21 of the Government Proceedings Act, Chapter 40 Laws of Kenya, rendering any attempt to enforce the decree or obtain mandamus against the Respondents impossible and contrary to due process and established procedure for execution against the Government. 3. Thirdly, the Respondents stated that no statutory duty to pay had arisen under Sections 21(3) and 21(4) of the Government Proceedings Act, because the Certificate of Order against the Government had not been served upon the Honourable Attorney General. They added that, in the absence of such service, they were statutorily barred from settling the decretal sum, and that an order of Mandamus could not lie to compel performance of a duty that had not yet crystallized. 4. Lastly, the Respondents contended that there was no evidence on their part of refusal or neglect to pay. He added that mere delay did not constitute refusal, particularly, where the Applicant had failed to follow the statutory procedure and had not produced any Affidavit of Service demonstrating proper demand or service of the Certificate of Taxation upon the Respondents. 5. On the basis of the aforesaid, the Respondents maintained that the Originating Motion filed by the Applicant was devoid of merit, premature, and an abuse of the Judicial Review process, and it ought to be dismissed with costs. 6. The Court at this juncture notes that the Grounds of Opposition herein were filed by the firm of G & A Advocates LLP of P. O. Box 22977 - 00100, Nairobi. A perusal of the Case Tracking System however does not show that the said Advocates had authority to appear on behalf of the Respondents since there is no Notice of Appointment of the said firm of Advocates on record. **Submissions** 1. The Applicant filed his Submissions dated 20th February 2026. He submitted that he filed a Statement of Claim and pleaded trespass over land parcel Migori/Kanyuor/6176 former North Kadem/Kanyuor/6176 located in the Kanyour Adjudication Section within Migori County before the Land Acquisition Tribunal. On 14th June 2024, the Tribunal found in her favour. That would be found in the Judgment of the Tribunal dated the same day. As a consequence, the Tribunal granted her several reliefs. The Applicant also submitted that the extracted a formal decree of the Tribunal dated 14th June 2024 and the said decree together with a copy of the judgment of the court were served upon the Respondents. 2. The Applicant submitted that the parties herein, being aggrieved by the judgment of the Court appealed against certain parts of the said judgment in Nairobi ELC Civil Appeal No. E090 of 2024 and Nairobi ELC Civil Appeal No. E097 of 2024. He stated that the court only set aside an award of Kshs. 200,000/= and substituted it with Kshs.3,000,000/=. 3. Further to the foregoing, the Applicant maintained that the Respondents owed him the costs that were awarded by the Tribunal. He maintained that, despite the Respondents being aware of the said costs, they were in contempt of express orders of the Tribunal, and they had never explained difficulties, if any, in complying with the Order of the Tribunal. 4. He maintained the 1st Respondent had an obligation of ensuring that the costs awarded to his were paid, since he/she was the accounting officer of the 2nd Respondent, and for that reason a duty bearer as contemplated by the applicable provisions of the Fair Administrative Actions Act and Section 21 (3) of the Government Proceedings Act. He further stated that the 2nd Respondent was a Government entity established pursuant to Section 7 of the Irrigation Act and it owed his of KShs. 356,675 /=, as at 16th April 2025 when the certificate of order and costs were issued which amount continues to accrue interest until paid. 5. It was the Applicant’s further submission that this court was the appropriate forum for purposes of enforcing the orders of the Tribunal since it declined to assume jurisdiction. He added that he had satisfied all the conditions necessary for the grant of an Order of Mandamus, including the service of an order dated 16th April 2025 against Government, upon the Respondents and the Attorney General. 6. The Applicant relied on **R v AG and another ex-parte James Alfred Koroso [2013] eKLR** as well as R **v County Secretary Nairobi City County & another ex parte Wachira Ndiritu and Co Advocates [2016] eKLR** to argue that he could only get relief by filing application seeking grant of an Order of Mandamus. He prayed for the order, and maintained that the grant of the same would ensure that his right to access justice pursuant to Article 48 of the Constitution would have been protected. Besides, he submitted that the grant of the order would actualize the final settlement of the dispute at hand within a reasonable time and ensure that he enjoyed the fruits of his judgment. 7. The Respondents on the other hand filed their submissions dated 31st March 2026. They identified three issues for determination, that is, whether the Applicant’s originating motion was merited; whether the Applicant was entitled to prayers (b), (c) and (f); and who to bear the costs of the application. 8. On the first issue, the Respondents submitted that the application offended Section 21 of the Government Proceedings Act for failing to serve the certificate of order against the Attorney General. They maintained that the application should be dismissed with costs. They also submitted that the Attorney General should have been joined in the instant proceedings. They relied on ***Republic v Permanent Secretary Office of The President Ministry of Internal Security & another Ex-Parte Nassir Mwandihi [2014] KEHC 6027 (KLR)***, 9. They maintained that whereas the Applicant obtained a Ruling on Taxation on 20th March 2025 and a Certificate of Taxation on 15th April 2025, none of these documents had been served upon the Attorney General to date. They stated that there is no evidence that the documents were either served on the Respondents or upon the Attorney General. In the circumstances, they maintained that an Order of Mandamus could not issue against Government where a certificate of order had not been served upon the Attorney General. They termed the application premature and procedurally defective hence called for its dismissal. 10. As to whether the Applicant was entitled to prayers (b), (c) and (f) of the application, the Respondents submitted that Judicial Review remedies available under the Fair Administrative Actions Act were certiorari, mandamus and prohibition hence the declaratory reliefs were not usually available under judicial review unless the same were sought through a Constitutional Petition. They relied on, among other decisions, **Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR)**to buttress this position. 11. On the question of who to bear the costs of the application, they submitted that costs follow event and are awarded at the discretion of the court. They relied on **Peter Muriuki Ngure v. Equity Bank (K) Ltd [2018] eKLR** to expound on the meaning of ‘costs follow event’. 12. The Respondents prayed that they be awarded the costs of the application since it was brought by the applicant in bad faith, maliciously and as an afterthought. **Issues, Analysis and Determination** 1. The issues that arise for determination are whether the firm of G & A Advocates LLP is properly on record; whether the Applicant satisfied the conditions for the grant of the orders sought in her application; and who to bear the costs of the application. 2. As to whether the firm of G & A Advocates LLP was properly on record, I have perused the court record. Only Grounds of Opposition and Submissions in that behalf are filed. My observation leads me to finds then that the law firm that filed the grounds of opposition as well as the submissions on behalf of the Respondents was not properly on record since there is no Notice of Appointment of Advocates or Appearance on behalf of the firm of advocates. Order 9 of the Civil Procedure Rules provides for agents that are authorized to represent parties in courts. Rule 1 thereof provides that; *‘Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by an advocate duly appointed to act on his behalf*:’’ 1. In **Kimeto & Associates Advocates v Mungai & another (Miscellaneous Civil Application E094 of 2024) [2026] KEHC 824 (KLR) (Commercial and Tax) (30 January 2026) (Ruling)** the court held that, *6. Order 9 Rule 1 provides that any application, appearance, or act in Court which the law requires or authorizes to be done by a party may, unless otherwise expressly provided, be undertaken in three distinct ways:* *a. By the party in person;* *b. By the party’s recognized agent; or* *c. By an advocate duly appointed to act on the party’s behalf.* *7. The language of this provision is clear and categorical. It establishes that the right of audience is not open-ended but is confined to those three categories. An advocate cannot simply appear in Court on behalf of a party without demonstrating that he or she has been duly appointed. The appointment must be formalized through the filing of the requisite documentation, so as to ensure that the Court and the opposing party are certain as to who is properly authorized to act.* 1. Having so established as above, it is my finding that the firm of G & A Advocates LLP was not properly on record for the Respondents. Accordingly, the documents they purportedly filed on behalf of the respondents are hereby struck out or expunged: they are be treated as though they were never filed, in the first place. 2. The upshot of the foregoing is that the Applicant’s allegations are not controverted. This being the position, the allegations put forward by the applicant will be treated as a true reflection of the factual situation, in the absence of any other evidence to the contrary. That is to say that any fact the depositions in the supporting Affidavit put forth and found to be as it is shall be taken to be so in so far as it is clearly supported by sufficient documentary or other evidence (see **Mochama v Ogoti (Civil Appeal E083 of 2023) [2025] KEHC 1468 (KLR) (26 February 2025) (Judgment)**. 3. I now turn to the merits or otherwise of the Originating Motion. The Applicant prayed for several reliefs, among them, declarations that the Respondents had violated various constitutional and statutory provisions for failing to pay to her the amount due and owing to him. The Applicant equally prayed for an order of mandamus against the 1st respondent for purposes of compelling him to pay the amount due and owing to the him. 4. The first point of determination is to consider the claim of constitutional violations. These regard the Applicant’s prayers seeking declarations that the Respondents are in violation of Articles 10, 47(1), 47(2) and 232 of the Constitution. This Court notes that the present proceedings were commenced as a judicial review application under cited provisions of the Constitution, the Fair Administrative Action Act and the Fair Administrative Action Rules, 2024. Thus, the Applicant has simultaneously with the Judicial Review prayers invited the Court to undertake a constitutional inquiry and award constitutional remedies including declarations of constitutional violations and compensatory damages. 5. The sticky question is, is recovery or payment of a party’s costs not an issue that statutorily provided for and could be adequately handled through other available means than through a constitutional claim? In my humble view, regarding the applicant’s claim hereinabove, this Court is not persuaded that every delay or failure in settlement of a decree against a government entity automatically translates into a constitutional violation. More importantly, where Parliament has prescribed a specific statutory procedure for enforcement of decrees against the Government, under the Government Proceedings Act, a litigant must first demonstrate strict compliance with that procedure before alleging violation of constitutional rights arising from non-payment. This Court would do well to explain it deeper as is below. 6. Article 23(3) of the Constitution empowers a court to grant appropriate relief, including declarations and compensation, in proceedings brought for enforcement of the Bill of Rights. Likewise, Article 22 grants every person the right to institute court proceedings claiming that a right or fundamental freedom has been denied, violated, infringed or threatened. Such proceedings are ordinarily commenced through a constitutional petition under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules. While judicial review has undoubtedly been recognized by the Constitution of Kenya, 2010 as a remedy or relief, it remains conceptually distinct from a constitutional petition seeking reliefs on certain violations of fundamental rights and freedoms of individuals. Judicial review primarily interrogates the legality, procedural propriety and rationality of administrative action, whereas constitutional litigation concerns the determination of alleged violations of constitutional rights and the grant of remedies flowing therefrom. 7. The constitutional provisions relied upon by the Applicant are Articles 23(2) and (3), 47(1), 47(2), 48, 50(1) and 159(2)(d) of the Constitution. The Applicant seeks declarations that those provisions have been violated and further seeks compensatory damages. Those prayers require the Court to determine substantive constitutional questions and to grant appropriate constitutional remedies. Such reliefs transcend the scope of the present judicial review proceedings and ought to have been pursued through a properly instituted constitutional petition in which the alleged violations are pleaded with the precision required by law. 8. The issue in the instant Judicial Review application is that the Respondents have delayed the payment of costs awarded in his favour, arising from and taxed in a dispute the Applicant won against the 2nd Respondent before a Tribunal. How does the delay, if any, translate to a violation of the applicant’s rights? Bearing in mind that this is a Judicial Review application and not a constitutional Petition, it is noteworthy and this court is clear in its mind, that once a party alleges and invokes a violation of a constitutional right in any other pleading or claim besides a Petition, the principles of specificity, clarity and precision do not cease to apply. They would as apply in as much equal force as in petitions. This requirement of clarity, specificity and precision was stated in the **Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272** (the Anarita Karimi Case) where the High Court held, *“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”* 1. The Court of Appeal in the **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (2013) eKLR** decision emphasized this requirement while adding that it did not require exactitude. The question then that remains in the instant application is how is the delay in payment of taxed costs a violation of the applicant’s constitutional right. The applicant relies on Articles 23(2) and (3), 47(1), 47(2), 48, 50(1) and 159(2)(d) of the Constitution to base his claim herein. The applicant submits that the delay in payment of the taxed costs went against his rights enshrined in the constitutional provisions above, particularly, that the Respondents have outrightly and expressly refused to pay the costs hence violating Article 47(1) of the Constitution and the Fair Administrative Action Act and by failing to give a written explanation contrary to Article 47(2). Further, that the actions are contrary to Articles 10 and 19(1) and (2). 2. Is payment of a party’s costs not an issue that can be adequately handled through other available means than through a constitutional claim? In my humble view, regarding the applicant’s claim hereinabove, this Court is not persuaded that every delay or failure in settlement of a decree against a government entity automatically translates into a constitutional violation. I would see no constitutional or statutory breach in a case where the claimant himself has not fulfilled a fundamental condition precedent to set in motion the respondents’ obligations. More importantly, where Parliament has prescribed a specific statutory procedure for enforcement of decrees against the Government, under the Government Proceedings Act, a litigant must first demonstrate strict compliance with that procedure before alleging violation of constitutional rights arising from non-payment. 3. This above principle has been buttressed by the Supreme Court in **Communication Commission of Kenya & Others v Royal Media Services Limited & 5 others [2014] eKLR** in the following words: ***“The appellants in this case are seeking to invoke ‘the principle of avoidance’; also known as ‘constitutional avoidance’. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.”*** 1. Additionally, the Court of Appeal has now settled that constitutional litigation is not open for every claim which may properly be dealt with under alternative existing mechanisms. (See **Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & Another [2016] eKLR**). I so find in this application: this is not one of those claims that may be adjudicated as such. In any event, it failed the constitutional specificity and precision as the **Anarita Karimi** (*supra*) and **Mumo Matemu** (*supra*) decisions guide. 2. It is not in doubt the 2nd Respondent is a public body established pursuant to statutory law. It is also not in doubt that the that the said Respondent owes the Applicant money pursuant to the decree and order of the Land Acquisition Tribunal mandating it to pay costs to the said party. The applicant maintained that he had complied with the Requirements of Section 21 of The Government Proceedings Act hence the submission that he deserves to be granted the Order of Mandamus as sought. 3. It is trite that under Section 107 of the Evidence Act, he who alleges proves, unless the burden is specifically placed by the law on another person. Thus, the Applicant is obligated to demonstrate to the satisfaction of the Court on a balance of probabilities that he complied with the requirements of Section 21 of the Government Proceedings Act in order for the instant proceedings to be deemed validly before the Court. 4. Section 21 (1) of the Government Proceedings Act provides as follows concerning the satisfaction of decrees against government. *(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.* 1. Section 21 (4) of the said Government Proceedings Act provides as follows: *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.* 1. In**Republic v Principal Secretary, Ministry of Environment and Natural Resources & another; Munyao & another (Ex parte Applicants) (Judicial Review Application E390 of 2025) [2026] KEHC 1263 (KLR) (Judicial Review) (10 February 2026) (Judgment)**, the court held: 11. In Republic v Chief Executive Officer, National Irrigation Authority & another; Nyaoke (Ex parte Applicant) (Judicial Review Application E052 of 2025) [2026] KEELC 170 (KLR) (22 January 2026) (Judgment) my brother Judge Kullow J stated as follows regarding mandamus: *“The scope of an order of mandamus was discussed by the Court of Appeal in the case of Kenya National Examination Council vs. Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR thus:* *“What is the scope and efficacy of an order of Mandamus? Once again, we turn to Halsbury’s Law of England, 4th Edition Volume 1 at page 111 From Paragraph 89. That learned treatise says:* *“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. “At paragraph 90 headed “the mandate” it is stated: “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.”* *In Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR, it was held that where a judgment creditor has complied with Section 21 of the Government Proceedings Act and the Government fails to honour its obligation, an order of mandamus lies to compel the performance of that statutory duty.* *The principles established in the aforementioned cases affirm that a mandamus order compels the execution of a public duty imposed by statute on an individual or entity, where such individual or entity has neglected to carry out that duty, thereby prejudicing a party with a legal entitlement to its performance.* *The question is therefore whether Ex parte the applicant complied with the elaborate procedure for applying for mandamus under section 21 of the Government Proceedings Act? A court will only issue an order of mandamus if it is shown that the requirements under Section 21 of the Government Proceedings Act have been fulfilled. In the case of Republic vs. Permanent Secretary Office of the President Ministry of Internal Security & Another ex parte Nassir Mwandihi [2014] eKLR, Odunga, J. (as he then was), held as follows:* *“...It must be remembered that an application for an order of mandamus seeking an order compelling the Government to satisfy a decree is a very elaborate procedure. Before the Court issues such an order, there must be proof that the provisions of the Government Proceedings Act have been complied with in respect to issuance of certificate of costs and certificate of order against the Government. After the issuance of the aforesaid documents, just like in any application for mandamus, there must be a demand for payment made by or on behalf of the decree holder to the relevant department seeking payment since in an application for an order of mandamus, the law as a general rule requires a demand by the applicant for action and refusal as a prerequisite to the granting of an order, though there are exceptions to the rule...The said elaborate procedure is further meant to give adequate notice to the Government to make arrangement to satisfy the decree. The procedure, in my view, is not meant to relieve the Government from meeting its statutory obligations to satisfy decrees and orders of the Court.* 1. In **Republic vs. Permanent Secretary Ministry of State for Provincial Administration and Internal Security [2012] eKLR**, the Court elaborated on the procedure for satisfying decrees against Government in the following terms: *“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...’’* 1. This Court has carefully considered the application in its totality as well as the submissions of the Applicant. The Applicant contends that he served the Certificate on the Attorney General. The Respondents argue that he did not. These two contentions can only be resolved using the documents presented by both parties to support their respective standpoints. 2. Although the applicant maintains that he served the documents mandated under Section 21 of the Government Proceedings Act upon the Respondents and the Attorney General, a close scrutiny of the annextures SOA 7, SOA 8, SOA 9 and SOA 10 are the only one to confirm the position. Annexture SOA 7 is the Certificate of Taxation, SOA 8 is a three–page letter dated 30th May 2025 addressed to the Engineer M. Muasya the Chief Executive Officer of the 2nd Respondent, and copied to the Office of the Attorney General, the office of G & A Advocates LLP and the Applicant. Annexture SOA 9 is an Email dated 30th May 2026 said to attach four documents, amongst which are the forwarding letter, Certificate of Order for costs against Government, the Decree, and Certificate of Costs. To it is attached one pdf document (sign or mark of attachment titled, “Nairobi Trilap No. E006 Letter.pdf.” Annexture SOA 10 is another email dated 24th September 2025 said to communicate by way of attachment a Notice of Intention to Sue. It is shown to have been emailed to the respondents whose addresses I have noted above but not to the Attorney General. It attaches a letter dated 16th July 2025 addressed to the two Respondents herein. 3. I have carefully considered all the annextures. I have not found any evidence of such service of ALL the documents above by way of proof of delivery of such Emails mentioned on all the Respondents, and more specifically, upon the Attorney General who is a critical office required to be served. There is no delivery report filed by the applicant to prove that service was affected as alleged and as mandated by Order 5 Rule 22B (2) of the Civil Procedure Rules, 2010 which provides that service shall be deemed to have been effected when the sender receives a delivery report, and Order 5 Rules 22B(4) to the effect that such a delivery receipt be filed with an Affidavit of service by an officer of the court. 4. Having determined this matter moments after the sister files in ELCLJR No. E001 and E002 of 2026 I hasten to added that this Court is alive to the Court of Appeal decision of **Hawkind Corporation (The Owner of the MV Kairo's) v African Marine & General Engineering Co. Ltd (Civil Appeal E019 of 2021) [2024] KECA 496 (KLR) (26 April 2024) (Judgment)** regarding service via electronic mail (Email). In it the Court held that ***“Under Order 5 rule 22B of the Civil Procedure Rules, 2010, as well as the Practice Directions On Electronic Case Management gazetted by the Chief Justice on 4th March 2022 in Gazette Notice No. 2357, and the Court of Appeal (Electronic Case Management) Practice Directions, 2021 dated 25th March 2021, the service of pleadings by electronic means is allowed, including by email. Order 5 rule 22B specifically provides for service by Electronic Mail Services (e-Mail) and a record of appeal or other pleadings can therefore be served by sending it to the Respondent’s last confirmed and used e-mail address. Under the rule, service shall be deemed to have been effected when the sender receives a delivery receipt.*** ***19. In the present application, the Respondent’s advocate did not dispute that the Record of Appeal was lodged on 1st March 2021 or contest the averments made by the Appellant’s advocate that info@kinyuamuyaa.com was his email address, and had been provided as his address of service, which notice was also on record. Therefore, having been served with an affidavit attaching a copy of an email showing delivery of the record of appeal to that email address, which is prima facie evidence of service under Order 5 rule 22B of the Civil Procedure Rules, 2010, the burden then shifted to the Respondent to show the contrary. In particular, if the Respondent was disputing the email’s authenticity, it was required to make the necessary application for an examination of the Appellant’s advocate, or for expert forensic audit of the email.”*** 1. Regarding the service claimed to have been done by the applicant on the Attorney General, the Court of Appeal of appeal is clear on proof thereof: a delivery receipt of the email must be given. Moreover, the decision is distinguishable from the instant case in a number of ways. First, unlike in the Hawkind (supra) case where the applicant did acknowledge and not dispute the email address used, at no point in time was it shown that the Attorney General ever acknowledged or gave the email address said to have been used to serve the requisite documents as its official or working email address. Second and of vital importance, the applicant herein did not annex any delivery receipt of the email purported to have been sent to show that indeed it was delivered on to the email address(es) alleged to have been sent to. Order 5 Rule 22B (2) of the Civil Procedure Rules requires that “*Service shall be deemed to have been effected when the Sender receives a delivery receipt*” (Emphasis mine). It means that it is not enough to print out am email sent or purported to have been sent out as the applicant herein did: there must proof of a delivery receipt of the email to accompany it, and demonstrated by an Affidavit of Service by an officer of the Court, attaching the delivery receipt. None was exhibited in the instant matter. 2. In the circumstances, I find that the applicant has not complied with the requirements of Section 21 of the Government Proceedings Act. His application is for an order of mandamus against the Respondents is thereby is premature. Thus, having also found that the prayers for the constitutional reliefs sought are untenable, then the whole Originating Motion is incompetent, premature and misconceived and is hereby struck out. 3. Regarding the issue of costs, I am alive to the provisions of Section 27 of the Civil Procedure Act that costs follow the event. The event herein is that the application has failed. But there was an earlier finding that the Respondents did not properly appoint the counsel who filed the responses and submissions. Thus, the application having been deemed as not having been properly opposed, then each party shall bear their own costs in the application. 4. It is so ordered. **Judgment Dated, Signed and Delivered Virtually Via The Teams Platform This 18TH DAY OF JUNE 2026.** **HON. DR. IUR NYAGAKA** **JUDGE** **In the presence of,** Mr. Odero M. Advocate holding brief for Winnie Awuor for the Applicants Mr. D. Ochola Advocate for the Respondents