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ELCDismissedJudicial Review application dated 16th May, 2024 (Notice of Motion under Order 53 Rule 3(1) of the Civil Procedure Rules)· [2025] KEELC 6939 (KLR)

Republic v County Government of Kericho & 5 others; Mutai (Ex parte Applicant) (Environment and Land Case Judicial Review Application E003 of 2024) [2025] KEELC 6939 (KLR)

Environment and Land Court
9 October 2025
LOL. A. Omollo
3,571 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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By a Notice of Motion dated 16th May, 2024 brought under Order 53 Rule 3(1) of the Civil Procedure Rules, with leave granted on 7th May, 2024, the Ex parte Applicant Joel Kiprono Mutai sought an order of mandamus compelling the Respondents, jointly and severally, to pay him Kshs. 4,018,520/- (comprising a decretal sum of Kshs. 2,445,998/- awarded on 20th May, 2020 in Kericho ELC Petition No. 1 of 2019, taxed costs of Kshs. 237,655/- and interest at 14% per annum). He further sought a notice to show cause why contempt proceedings should not issue against the office-holders, and liberty to commence contempt proceedings and commit them to civil jail in default of payment. The Respondents, though properly served, filed no response and neither party filed submissions. The court identified a single issue - whether the application had merit. Relying on the Gathenji Njoroge, Noorani and Egunza authorities, it held that under Section 21(1) and (2) of the Government Proceedings Act the condition precedent for mandamus against an Accounting Officer is the obtaining and service on the Attorney-General of a certificate of order against the Government, whose service constitutes a demand for payment. The Applicant had attached only the judgment, decree, certificate of taxed costs and without-prejudice demand letters, but no certificate of order against the Government. Mandamus therefore could not issue, and the contempt prayers were premature since no order existed to be disobeyed. The application was struck out with costs.

Key legal issues

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01

Whether an order of mandamus could issue to compel payment of the decretal sum against the County Government

Holding

No, mandamus cannot issue because the Applicant failed to demonstrate compliance with the condition precedent under Section 21(1) and (2) of the Government Proceedings Act - obtaining and serving the certificate of order against the Government

Reasoning

The court applied Gathenji Njoroge on the scope of mandamus and Noorani on the requirements for its issue, and relied on the Egunza decision holding that decrees against Government can only be enforced by mandamus against the Accounting Officer after a certificate of order against the Government is obtained and served on the Attorney-General. The Applicant attached only the judgment, decree, certificate of taxed costs and without-prejudice demand letters, but no certificate of order against the Government. Compliance with this step is what triggers the statutory duty to pay under Section 21(3).

p. 8
02

Whether contempt/notice to show cause orders could be granted in default of mandamus

Holding

The contempt prayers were premature since no mandamus order existed to be disobeyed and the certificate of order had neither been extracted nor served

Reasoning

Relying on Republic v Attorney General Ex parte Miriam Wairimu Wambugu, the court held that a notice to show cause why contempt proceedings should not be commenced is premature where the applicant has not shown evidence of service and disobedience of a court order. Since mandamus had not been granted and the prerequisite certificate of order against the Government had not been extracted and served, the contempt prayers could not be considered at that stage.

p. 8

Legal principles established

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  • Before mandamus can issue to compel an Accounting Officer to pay a decree against the Government, the judgment creditor must obtain the certificate of order against the Government under Section 21(1) and (2) of the Government Proceedings Act and serve it on the Attorney-General; service of that certificate constitutes the demand for payment

Court orders

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  1. 1.The Ex parte Applicant's Notice of Motion dated 16th May, 2024 is struck out with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3(1)
  • Government Proceedings ActSection 21

Cases cited (4)

  • Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR
  • Republic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another
    [2018] eKLR
  • Repuplic (sic) V Permanent Secretary, Ministry of State For Provincial Administration And Internal Security Ex parte Fredrick Manoah Egunza
    [2012] eKLR
  • Republic v Attorney General Ex partes Miriam Wairimu Wambugu & another
    [2021] eKLR
Jurisdiction invoked
Order 53 Rule 3(1) of the Civil Procedure Rules (judicial review, by leave granted on 7th May, 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 Kericho & 5 others; Mutai (Ex parte Applicant) (Environment and Land Case Judicial Review Application E003 of 2024) [2025] KEELC 6939 (KLR)", Case Analysis (2025). Judicial Review application dated 16th May, 2024 (Notice of Motion under Order 53 Rule 3(1) of the Civil Procedure Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6939/eng@2025-10-09

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