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ELCAllowedEnvironment and Land Judicial Review Case E001 of 2022· [2022] KEELC 15351 (KLR)

Republic v Chief Officer Finance County Government of Samburu & another; Mucheru (Subject)

Environment and Land Court of Kenya
15 December 2022
YAY. M. Angima
1,436 words in judgment
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The bottom line

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A Kenyan court ordered Samburu County to pay a Kshs 15.2 million court judgment, confirming mandamus as the way to enforce decrees against governments.

What this practically means

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Executive summary

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The ex parte applicant, Margaret Wambui Mucheru, was the decree holder in Nyahururu CM ELC No 311 of 2018 (formerly Nyahururu ELC No 19 of 2017, formerly Nakuru HCCC No 57 of 2016), in which judgment was entered against the County Government of Samburu for Kshs 8,241,156/= plus costs and interest, totalling Kshs 15,203,020/=. Despite demand and service of a certificate of order against the government, the respondents failed to settle the decree. Armed with leave granted on February 7, 2022, the applicant moved the Court by notice of motion dated April 26, 2022 under sections 8 and 9 of the Law Reform Act and Order 53 rules 3 and 4 of the Civil Procedure Rules, seeking an order of mandamus compelling the respondents to pay the decretal amount, plus costs. The respondents filed no response and no submissions despite being given two opportunities. Angima J framed a single issue: whether the applicant had made out a case for the judicial review order sought. The court found the decree still in force, no pending appeal, and that execution against the county government is barred by section 21 of the Government Proceedings Act, leaving mandamus as the only effective remedy. Applying Egunza and Koroso, and invoking articles 48 and 129 of the Constitution on access to justice, the court issued the mandamus and awarded the applicant costs of the application.

Key legal issues

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01

Whether mandamus lies to compel a county government to settle a decree

Holding

Yes; where the decree holder is barred from executing against the government under section 21 of the Government Proceedings Act, mandamus issues to compel settlement of the decretal amount.

Reasoning

The court found the factual and legal foundation of the application undisputed, as no response or submissions were filed by the respondents. The decree in Nyahururu CM ELC No 311 of 2018 remained in force with no pending appeal. Since execution against the county government is barred by section 21 of the Government Proceedings Act, judicial review by mandamus was the only effective enforcement avenue, following Egunza and Koroso.

Legal principles established

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  • Where execution against a government is barred under section 21 of the Government Proceedings Act, mandamus is the only effective avenue to enforce a decree against a county government.

Court orders

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  1. 1.An order of mandamus issued directed to the respondents to pay the ex parte applicant the decretal amount passed in Nyahururu CM ELC No 311 of 2018 (formerly Nyahururu ELC No 19 of 2017, formerly Nakuru HCCC No 57 of 2016) in the sum of Kshs 8,241,156/= together with costs and interest thereon in the total sum of Kshs 15,203,020/=.
  2. 2.The applicant awarded costs of the application for judicial review.

Authorities

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Legislation

  • Law Reform Act (Cap 26)sections 8 & 9
  • Civil Procedure Rules, 2010Order 53 rules 3 & 4
  • Government Proceedings Act (Cap 40)section 21, section 21(3)
  • Constitution of Kenya, 2010article 48; article 129

Cases cited (5)

  • Republic v Kenya National Examinations Council Ex parte Gathenji & others
    [1997] eKLR

    Principles for grant of mandamus orders

  • Republic v Commissioner of Lands & another ex parte Kithinji Murugu M'agere
    Nairobi High Court Misc Application No 395 of 2012

    Judicial review mandamus

  • Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza
    [2012] eKLR

    Mandamus issued to compel respondent to pay decretal amount

  • Republic v The Hon Attorney General Exparte James Macharia Mwangi
    Nakuru HCC JR No 24 of 2017
  • Republic v The Attorney General & another exparte James Alfred Koroso
    High Court Judicial Review Misc Application No 44 of 2012

    Mandamus to compel settlement of decree where execution against government barred

Jurisdiction invoked
Sections 8 & 9 of the Law Reform Act (Cap 26) and Order 53 rules 3 & 4 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Chief Officer Finance County Government of Samburu & another; Mucheru (Subject)", Case Analysis (2022). Environment and Land Judicial Review Case E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15351/eng@2022-12-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.