Republic v County Secretary, Nairobi City County Chief Officer, Finance/County Treasurer & another; Garden of Eden Restaurant (Exparte Applicant) (Environment and Land Miscellaneous Application E011 of 2022) [2023] KEELC 920 (KLR)
The bottom line
#The Environment and Land Court ordered Nairobi City County officials to personally ensure payment of a Kshs 13 million-plus court award, rejecting budget excuses.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions precedent under section 21 of the Government Proceedings Act were satisfied, particularly service of the certificate of order against the government
They were satisfied. Service of the certificates on the Respondents' advocates, who stamped them in acknowledgement, sufficed because section 21(2) is not mandatory and the Respondents did not dispute the decretal sums.
The court distinguished the authority cited by the Respondents, where the certificates had not been served at all, from the present case where service was effected on the Respondents' advocates who acknowledged receipt. Section 21(2) contemplates service on persons other than the Attorney General. The Respondents admitted awareness of the obligation and only sought time, so the stringent requirements of the Act were met.
Whether the County Secretary and the Chief Officer, Finance/County Treasurer bear the legal duty to satisfy the decree
Yes, both are jointly responsible by virtue of their statutory roles under section 44 of the County Government Act and section 103 of the Public Finance Management Act.
Following Nyamweya J in the Trans Nzoia case, the court held that the County Secretary is answerable for the operations of the County Executive and head of the county public service, while the County Executive Committee Member for Finance and the Chief Officer head the County Treasury. Both are therefore jointly responsible for satisfaction of court orders and decrees on payment of money owed by the county.
Whether budgetary constraints and the recent constitution of the current officials excuse non-compliance
No. Budgeting is within the government's control, the county had been aware of the risk since 2013, and supplementary budgeting exists; unwillingness masked as budgetary constraint cannot impede compliance.
The principal case was defended by the County Government from 2013 to judgment in 2019, so the county was sufficiently aware of potential liability and should have made budgetary allocations. The court adopted the Jaribu Credit Traders and Webuye authorities holding that the law does not condition settlement of decrees on budgetary allocations, and that decrees must be satisfied at some point, sooner rather than later given accruing interest.
Legal principles established
#- Section 21 of the Government Proceedings Act (applicable to counties via s.21(5)) prescribes the conditions precedent for mandamus to compel payment of decrees against a government, and service of the certificate of order on the government's advocates suffices since the service provision is not mandatory.
- The County Secretary and the Chief Officer, Finance/County Treasurer are jointly responsible for satisfaction of decrees on payment of money owed by the county by virtue of sections 44 of the County Government Act and 103 of the Public Finance Management Act.
- Settlement of decrees against a government is not conditioned on budgetary allocations; the government must make contingency provisions for its liabilities in each financial year.
- A decree holder's right to enjoy the fruits of judgment must not be thwarted; courts should adopt an interpretation favouring enforcement of accrued rights.
Court orders
#- 1.A writ of mandamus issued directed to the County Secretary, Nairobi City County and the Chief Officer, Finance/County Treasurer, Nairobi City County to pay the Applicant special damages of Kshs 6,777,432.46 with interest at court rates from the date of filing suit until payment in full; general damages of Kshs 1,000,000; exemplary damages of Kshs 5,000,000; interest on the general and exemplary damages at court rates until payment in full; and costs of Kshs 741,798.21 with interest at court rates until payment in full
- 2.The costs of this cause assessed at Kshs 50,000 to be borne by the Principal Defendant - Nairobi City County
- 3.Within 14 days of the judgment the Deputy Registrar of the Court to ascertain the total sums payable per the judgment of 4th October 2019, factoring interest at court rates and the assessed costs
- 4.The ascertained sum to continue to attract interest at court rates from the date of the judgment until payment in full
- Jurisdiction invoked
- Judicial review jurisdiction (leave granted for mandamus) under Order 53 of the Civil Procedure Rules; enforcement against a county government under section 21 of the Government Proceedings Act and sections 44 of the County Government Act and 103 of the Public Finance Management Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Secretary, Nairobi City County Chief Officer, Finance/County Treasurer & another; Garden of Eden Restaurant (Exparte Applicant) (Environment and Land Miscellaneous Application E011 of 2022) [2023] KEELC 920 (KLR)", Case Analysis (2023). ELC Judicial Review Case (Notice of Motion dated 18th July 2022) arising from ELC 102 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/920/eng@2023-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.