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ELCPartially AllowedKericho High Court Miscellaneous Application No. E006 of 2024 (judicial review, Notice of Motion dated 31st July 2024)· [2025] KEELC 3799 (KLR)

Republic v Chief Officer in Charge of Finance County Government of Kericho & 2 others; Omari Kefa p/a E.M Orina Advocates (Exparte Applicant) (Environment and Land Case Judicial Review Application E004 of 2024) [2025] KEELC 3799 (KLR)

High Court of Kenya
12 May 2025
3,677 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court ordered Kericho County to pay an advocate KShs 1.55 million in certified legal costs, confirming mandamus as the only way to enforce money decrees against government.

What this practically means

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Executive summary

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The Ex parte Applicant, an advocate, sought judicial review orders of mandamus to compel the Respondents to satisfy a certificate of costs dated 7th May 2024 and a certificate of order for costs against the government dated 24th May 2024, both for Kshs. 1,553,612/=, issued in Kericho ELC Misc. Application No. E004 of 2024 arising from legal services rendered to the County Government of Kericho in Kericho ELC Case No. 25 of 2017. Leave was granted on 29th July 2024 and the substantive motion filed on 31st July 2024. The Respondents were duly served but did not appear or file submissions. The court framed a single issue: whether the application had merit. Relying on the Gathenji definition of mandamus and the requirements set out in Schon Noorani, and applying Section 21 of the Government Proceedings Act and the Egunza decision, the court held that the Applicant had established a statutory duty on the accounting officer to pay the certified costs, that the certificates had been served (including by letter dated 25th June 2024, received 9th July 2024), and that non-payment warranted mandamus, which is the only mode of enforcing monetary decrees against government given the immunity from execution under Section 21(4). However, the prayer for a notice to show cause for contempt and committal to civil jail was held premature, there being no evidence of service and disobedience of a court order or contempt proceedings. The application partially succeeded: mandamus issued compelling payment of Kshs. 1,553,612/= with interest from the date of taxation (23rd April 2024) until payment in full, and the Applicant was awarded costs of the application.

Key legal issues

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01

Whether mandamus should issue to compel payment of taxed costs against the county government

Holding

Yes. The Applicant held a certificate of costs and a certificate of order for costs against the government, served them on the Respondents, and payment was refused, satisfying the statutory duty threshold for mandamus.

Reasoning

The court applied the established test that mandamus lies to compel performance of a public statutory duty. The Applicant demonstrated a taxed advocate-client bill, a certificate of costs for Kshs. 1,553,612/=, a certificate of order against the government, service of both by letter dated 25th June 2024 (received 9th July 2024), and continued non-payment. Under Section 21(3) of the Government Proceedings Act, the accounting officer is under a statutory duty to pay, which mandamus enforces since execution against government property is barred.

p. 8
02

Whether a notice to show cause for contempt could issue at this stage

Holding

No - the prayer was premature because there was no evidence of service and disobedience of a court order or contempt proceedings.

Reasoning

The Applicant sought a notice to show cause in default of payment within fourteen days. Following the Miriam Wairimu Wambugu decision, the court held such a prayer premature absent evidence that a court order had been served and disobeyed and contempt proceedings instituted. Mandamus had not previously issued, so there was no order capable of being breached.

p. 8

Legal principles established

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  • A decree for money or costs against the Government can only be enforced by way of an order of mandamus compelling the accounting officer to pay, the Government being immune from execution and attachment under Section 21(4) of the Government Proceedings Act
  • Once a certificate of order against the Government is served, Section 21(3) imposes a statutory duty on the accounting officer to pay the certified sums plus interest, and payment is not conditioned on budgetary allocation or parliamentary approval

Court orders

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  1. 1.An order of mandamus compelling the Respondents to pay the Ex parte Applicant Kshs. 1,553,612/= being the certified costs awarded in Kericho ELC Misc Application No. E004 of 2024, together with interest from 23rd April 2024 (date of taxation) until payment in full
  2. 2.The Ex parte Applicant shall have costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3(1)
  • Law Reform ActSections 8 and 9
  • Constitution of KenyaArticle 27
  • Government Proceedings ActSection 21(1), (2), (3) and (4)

Cases cited (5)

  • Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza
    [2012] eKLR
  • Kenya National Examinations Council Ex parte Gathenji & others
    Civil Appeal No. 266 of 1996; [1997] eKLR
  • Republic v Attorney General & another Exparte James Alfred Koroso
    [2013] eKLR
  • Republic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another
    [2018] eKLR
  • Republic v Attorney General Ex partes Miriam Wairimu Wambugu & another
    [2021] eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act and Order 53 Rule 3(1) of the Civil Procedure Rules

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 in Charge of Finance County Government of Kericho & 2 others; Omari Kefa p/a E.M Orina Advocates (Exparte Applicant) (Environment and Land Case Judicial Review Application E004 of 2024) [2025] KEELC 3799 (KLR)", Case Analysis (2025). Kericho High Court Miscellaneous Application No. E006 of 2024 (judicial review, Notice of Motion dated 31st July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3799/eng@2025-05-12

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