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ELCPartially AllowedJudicial Review Proceedings (Notice of Motion dated 26th February 2026)· [2026] KEELC 3509 (KLR)

Republic v County Secretary Nyamira County & 3 others; Mosagwe & 2 others (Ex parte Applicants) (Environment and Planning Judicial Review E001 of 2026) [2026] KEELC 3509 (KLR)

High Court of Kenya
10 June 2026
2,535 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's High Court ordered Nyamira County to pay a judgment debt within 90 days, confirming counties cannot hide behind budgeting excuses forever.

What this practically means

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Executive summary

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The Ex Parte Applicants, judgment-creditors in Nyamira ELC Case No. 21 of 2021 (Hosea Nyandika Mosagwe & 2 Others v County Government of Nyamira), obtained judgment on 16th November 2021 for general damages and costs. Having taxed their bill on 2nd August 2024, extracted a decree, certificate of costs and certificate of satisfaction order, and served them on the Respondents and the County Attorney on 13th November 2025 without payment, they moved the court by Notice of Motion dated 26th February 2026 seeking an order of mandamus compelling the County Secretary and chief officers to pay Ksh. 1,468,000.00 as general damages and Ksh. 696,300.00 as costs, with a timeline for settlement and interest. The Respondents, through a replying affidavit of the County Secretary, opposed the application as misconceived, arguing that mandamus requires a clear statutory duty, that the duty to pay is not absolute, and that payment must follow public finance budgeting and appropriation procedures. The court, considering the Gathenji formulation of mandamus, held that under Section 21(3) of the Government Proceedings Act (applicable to county governments by Section 21(5)) the Respondents owed a clear legal duty to pay the certified sums. Judgment had been undischarged for over five and a half years; the Respondents did not deny the judgment or challenge the documents, and their reliance on public finance procedures was unsupported by any evidence of steps taken or proposals to settle. Since a county government cannot be subjected to execution, attachment or committal, mandamus was the only adequate remedy. The court issued the mandamus, allowed the Respondents 90 days to settle the decretal sum with interest, and awarded the Ex Parte Applicants the costs of the judicial review proceedings.

Key legal issues

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Whether an order of mandamus should issue compelling the Respondents to satisfy the decretal sums

Holding

Mandamus issued. The Respondents had a clear statutory duty under Section 21(3) of the Government Proceedings Act to pay sums certified against the County Government, the decree and certificate of satisfaction order had been served, and no other adequate remedy of execution was available against a county government.

Reasoning

The court traced the scope of mandamus from the Gathenji decision: it commands only what a party is legally bound to perform. Judgment was delivered on 16th November 2021 and service of the decree, certificate of costs and certificate of satisfaction order was effected on 13th November 2025. The Respondents did not deny the judgment or challenge the documents, but pleaded public finance procedures without showing any steps taken or proposal to settle. Section 21(5) applies Section 21 to county governments, creating the duty the court enforced.

p. 4
02

Whether reliance on public finance and appropriation procedures defeats mandamus

Holding

Rejected. The Respondents invoked public finance procedures but gave no details of any steps taken or any proposal on how and when the decree would be satisfied.

Reasoning

The court accepted that a general duty with discretion as to mode cannot be commanded in a specific way, and granted the Respondents 90 days to accommodate budgetary and public finance processes. However, an unexplained and indefinite reliance on such procedures cannot excuse a statutory payment duty that had gone unperformed for over five years after formal service of the decree and certificate.

p. 5

Legal principles established

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  • Under Section 21(3) of the Government Proceedings Act, the Accounting Officer of a Government department (applicable to county governments by Section 21(5)) has a legal duty to pay sums certified against the Government together with interest lawfully due
  • A decree against a county government cannot be enforced by attachment and sale of assets or by committal to civil jail; where no other adequate remedy exists, mandamus lies to compel payment

Court orders

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  1. 1.An order of mandamus compelling the Respondents to pay the Ex Parte Applicants the decretal sum of KShs 1,468,000.00 and KShs 696,300.00 being general damages and costs awarded in Nyamira ELC Case No. 21 of 2021, Hosea Nyandika Mosagwe & 2 Others v The County Government of Nyamira, judgment delivered 16th November 2021
  2. 2.The Respondents to settle the decretal sum together with interest within 90 (ninety) days from the date of delivery of the judgment
  3. 3.The Ex Parte Applicants to have costs of the judicial review proceedings
Jurisdiction invoked
Judicial review jurisdiction of the High Court under Order 53 of the Civil Procedure Rules; leave to commence judicial review proceedings granted on 29th January 2026

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 Secretary Nyamira County & 3 others; Mosagwe & 2 others (Ex parte Applicants) (Environment and Planning Judicial Review E001 of 2026) [2026] KEELC 3509 (KLR)", Case Analysis (2026). Judicial Review Proceedings (Notice of Motion dated 26th February 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3509/eng@2026-06-10

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