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ELCAllowedJudicial Review (Notice of Motion dated 16th February 2025) – leave granted in Bungoma ELC Petition No. 5 of 2013 matter· [2025] KEELC 1071 (KLR)

Republic v County Government of Bungoma & 12 others; Chief Officer Ministry of Lands & Housing, Bungoma County (Interested Party) (Environment and Land Judicial Review Miscellaneous Application E001 of 2024) [2025] KEELC 1071 (KLR)

Environment and Land Court
6 March 2025
1,910 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court ordered Bungoma County officials to pay Kshs.593,648 in awarded legal costs, confirming individuals can force county governments to pay court judgments.

What this practically means

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Executive summary

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The ex-parte Applicants were decree holders in Bungoma ELC Petition No. 5 of 2013, in which judgment was entered in their favour with costs against the County Government of Bungoma and others. After their bill of costs was taxed at Kshs.593,648.3 and the certificate of costs served on the Chief Officer, Ministry of Lands and Housing (the accounting officer), the sum remained unpaid. They obtained leave on 31st October 2024 to apply for judicial review orders of mandamus, and by a Notice of Motion dated 16th February 2025 sought an order compelling payment of the decretal sum. The Respondent filed no response despite service. Justice E.C. Cherono applied the mandamus principles in R v Kenya National Examination Council ex-parte Githinji and the eight-factor test in the Schon Noorani decision, and considered Section 21 of the Government Proceedings Act, which obliges the Accounting Officer of the department concerned to pay certified amounts with lawful interest while barring other execution against Government. The court held that Bungoma County, established under Article 6 and the First Schedule of the Constitution, falls within 'Government' under the Act, and that execution against a public authority lies only against the accounting or chief officer, who is under a statutory duty to satisfy court judgments. Finding the taxed costs undisputed, served and refused, the court found the Respondent jointly responsible with the Chief Officer for satisfaction of decrees against the County, granted mandamus compelling payment of Kshs.593,648.3 with interest at 6% per annum from 21st February 2023 until payment in full, and awarded the Applicants the costs of the motion. Judgment delivered at Bungoma on 6th March 2025.

Key legal issues

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01

Scope and efficacy of mandamus

Holding

Mandamus is a command of extensive remedial nature issuing to a person or body required to perform a public duty, available where there is a specific legal right and no specific or equally convenient remedy.

Reasoning

The court adopted the principles in R v Kenya National Examination Council ex-parte Githinji drawing on Halsbury's Laws of England, and the eight-factor test in the Schon Noorani decision: a public legal duty owed to the applicants, a clear right, prior demand, reasonable time to comply, refusal or unreasonable delay, no other adequate remedy, practical value, no equitable bar, and balance of convenience favouring mandamus.

p. 3
02

Statutory duty of the accounting officer under Section 21 of the Government Proceedings Act

Holding

Where a court order including costs is made against the Government, the Accounting Officer of the department concerned must pay the certified amount together with lawful interest, and no other execution or attachment lies.

Reasoning

Section 21(1) requires the proper officer to issue a certificate of the order after taxation of costs; Section 21(3) obliges the Accounting Officer to pay the certified amount with interest; Section 21(4) bars execution or attachment and individual liability. County Governments fall within 'Government' under Article 6 of the Constitution and the Government Proceedings Act, so the duty attaches to the County's accounting officer.

p. 4
03

Whether the Respondent and Interested Party were under a duty to pay the decretal sums

Holding

Yes. The judgment and taxed certificate of costs were not disputed, the certificate had been served, and payment was refused, so the Respondent is jointly responsible with the Chief Officer for satisfaction of the decree.

Reasoning

Judgment with costs was entered in the Applicants' favour in Bungoma ELC Petition No. 5 of 2013; the bill of costs was taxed and the certificate served on the accounting officer, who refused or declined to settle. No response was filed despite service. The court therefore found a clear public legal duty breached to the detriment of the decree holders and granted mandamus with interest at 6% per annum.

p. 5

Legal principles established

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  • Execution proceedings against a Government or public authority can only be as against the accounting officer or chief officer, who is under a statutory duty to satisfy the judgment.
  • An order of mandamus issues to compel performance of a public duty imposed by statute where the duty-holder, despite demand, has failed to perform it.

Court orders

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  1. 1.An order of mandamus to compel the County Government of Bungoma, and the Chief Officer, Ministry of Lands & Housing to pay to the ex-parte Applicants the sum of Kshs.593,648.3 being the taxed costs together with interest thereon at 6% per annum from 21st February, 2023 until payment in full
  2. 2.The ex-parte Applicants shall have the costs of the Notice of Motion dated 16/02/2024
  3. 3.Orders accordingly

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 29(3)
  • Government Proceedings ActSection 21(1), (2), (3), (4)
  • Constitution of Kenya, 2010Article 6 and the First Schedule

Cases cited (2)

  • R v Kenya National Examination Council ex-parte Githinji and 9 Others
    (1997) KLR
  • Principal Secretary, Ministry of Internal Security & Another ex-parte Schon Noorani & Another
    (2018) eKLR
Jurisdiction invoked
Judicial review (mandamus) under Order 29(3) of the Civil Procedure Rules, 2010 as read with Section 21 of the Government Proceedings Act, following leave granted on 31st October 2024

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 County Government of Bungoma & 12 others; Chief Officer Ministry of Lands & Housing, Bungoma County (Interested Party) (Environment and Land Judicial Review Miscellaneous Application E001 of 2024) [2025] KEELC 1071 (KLR)", Case Analysis (2025). Judicial Review (Notice of Motion dated 16th February 2025) – leave granted in Bungoma ELC Petition No. 5 of 2013 matter. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1071/eng@2025-03-06

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