Republic v Chief Secretary, Tharaka Nithi County & 2 others; Mugwetwa (Ex parte Applicant) (Environment and Land Judicial Review Miscellaneous Application E001 of 2025) [2025] KEELC 5594 (KLR)
The bottom line
#You cannot force a Kenyan county government to pay a court award until you obtain and serve a certificate of order on its accounting officer.
What this practically means
#Executive summary
#Key legal issues
#Whether the exparte applicant satisfied the conditions precedent for mandamus under Section 21 of the Government Proceedings Act
The applicant failed to exhibit the certificate of order obtained from the Deputy Registrar and served on the accounting officer, so the mandamus application was premature
The court reviewed the Canadian criteria for mandamus and the mandatory requirements of Section 21 of the Government Proceedings Act as affirmed in Egunza and Five Star Agencies. Although the applicant exhibited the judgment, decree, certificate of costs and demand letters, he did not exhibit the certificate of order served on the accounting officer. The certificate of order serves as a formal demand and the instrument the accounting officer relies on for budgeting; absent proof of its service, mandamus was premature.
Whether unbudgeted expenditure under the Public Finance Management Act excuses non-payment of a court award
Not decided on the merits; the court noted the respondent's fiscal arguments but found the application failed on the Section 21 threshold
The respondents argued that Articles 201 and 225 of the Constitution and the Public Finance Management Act prohibit unbudgeted payments, and that the award was not in the 2024/2025 budget. However, the court did not reach this defence because the application was struck out for prematurity, the applicant having failed to comply with the mandatory certificate-of-order procedure.
Legal principles established
#- A certificate of order served on the accounting officer under Section 21 of the Government Proceedings Act is a mandatory condition precedent to an order of mandamus compelling payment of a monetary decree against a county government
- Section 21(4) of the Government Proceedings Act immunises government property from execution and attachment; decrees against government can only be enforced by mandamus against the accounting officer
- Payment under Section 21(3) is not conditioned on budgetary allocation or approval
Court orders
#- 1.The notice of motion dated 5/2/2025 is struck out for having been brought prematurely
- 2.Parties shall bear their respective costs of the case
- 3.The exparte applicant is at liberty to bring a fresh motion once a certificate of order is procured and served and a period of 12 months lapses without the accounting officer satisfying the court award
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court (order of mandamus under Order 29 of the Civil Procedure Rules and Section 21 of the Government Proceedings Act, Cap 40)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chief Secretary, Tharaka Nithi County & 2 others; Mugwetwa (Ex parte Applicant) (Environment and Land Judicial Review Miscellaneous Application E001 of 2025) [2025] KEELC 5594 (KLR)", Case Analysis (2025). Notice of Motion dated 5/2/2025 (arising from Chuka ELC Constitutional Petition No. 1 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5594/eng@2025-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.