Republic v County Government of Nairobi & 2 others Ex-Parte Kingpost Limited [2021] KEELC 1084 (KLR)
The bottom line
#Nairobi's High Court ordered the County Government to pay a court decree, ruling that lack of budget allocation is no excuse for failing to pay.
What this practically means
#Executive summary
#Key legal issues
#Proper parties against whom mandamus may issue for enforcement of a decree against a county government
County Governments are legal successors of defunct local authorities and may be compelled through their accounting officer, the CEC Finance; the 3rd Respondent was mis-joined but this is curable.
Section 33 of the Sixth Schedule makes county governments legal successors of former local authorities, so proceedings properly continue against the County Government of Nairobi. Under sections 103, 104 and 148 of the Public Finance Management Act and Article 226 of the Constitution, the CEC Finance is the county accounting officer. The 3rd Respondent (CEC Lands) has no role; mis-joinder is an irregularity curable and outweighed by Article 159(2)(d).
Whether conditions precedent under section 21 of the Government Proceedings Act were satisfied
Yes - certificate of order against the government was obtained and served with demand letters; the accounting officer is thereafter under a statutory duty to pay.
The court found the applicant annexed the judgment, decree, certificate of taxation and certificate of order against the 1st Respondent, plus stamped demand letters dated 1st October 2019 and 9th January 2020. Following the Egunza authority, service of the certificate of order triggers a statutory duty on the accounting officer to pay the certified sums with lawful interest.
Whether lack of budgetary allocation excuses non-payment
No - payment of decrees is not conditioned on budgetary approval; failure to allocate funds is a failure of statutory obligation justifying mandamus.
Relying on Jaribu Credit Traders and David Gitau Njau, the court held that governments must make contingency provisions for liabilities in each financial year. The judgment of 19th June 2018 should have been factored into the 2019/2020, 2020/2021 or 2021/2022 budgets, the last of which was already approved. Financial constraints go only to the mode of settlement, not to refusal to pay.
Leave to institute contempt proceedings
Refused as premature; contempt arises only upon non-compliance with the mandamus once issued.
The court reasoned that leave to cite for contempt can only be sought after a mandamus has been issued and defied. Since the mandamus was being issued for the first time in these proceedings, prayer 2 was premature and was not granted.
Legal principles established
#- A county government is a 'government' for purposes of the Government Proceedings Act, so execution can only issue against its accounting officer by way of mandamus.
- The accounting officer of a county government is the County Executive Committee Member for Finance.
- Settlement of decretal sums by government does not depend on budgetary allocation; failure to allocate funds warrants mandamus.
- Mis-joinder of parties is a curable irregularity that does not defeat the substance of the claim.
Court orders
#- 1.A writ of Mandamus against the County Government of Nairobi and the County Executive Committee Member for Finance-Nairobi County compelling them forthwith to satisfy the decree in ELC No. 506 of 2008 (also Thika ELC No. 35 of 2017) is issued
- 2.The Ex-parte Applicant to have the costs of the application
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court for orders of mandamus under the Law Reform Act / Government Proceedings Act; Constitution Articles 159(2)(d) and 48 invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Government of Nairobi & 2 others Ex-Parte Kingpost Limited [2021] KEELC 1084 (KLR)", Case Analysis (2021). Judicial Review (Notice of Motion dated 29th October 2020), arising from Thika ELC No. 35 of 2017 (formerly Nairobi ELC No. 506 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1084/eng@2021-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.