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ELRCStruck OutJudicial Review Application (Notice of Motion) dated 19th April, 2019

Republic v County Government of Nakuru & another; James Mwangi Muraya (Ex parte) [2020] KEELRC 1019 (KLR)

Environment and Land Court / High Court (judicial review)
27 April 2020
MMM. Mbaru
1,687 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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You cannot force a Kenyan county government to pay a court decree through mandamus until you obtain and serve both a certificate of costs and a certificate of order.

What this practically means

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Executive summary

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The ex parte applicant sought an order of mandamus compelling the 2nd respondent to satisfy the decree issued in Nakuru ELRC Cause No.124 of 2016, in which he was awarded salary arrears, accrued overtime and lap trust contributions of Ksh.617,432.60 plus costs, together with the certificate of costs issued on 4th December 2018. The respondents opposed, contending that the applicant had not complied with section 21 of the Government Proceedings Act, in particular the requirement to obtain and serve a certificate of order on the Attorney General within 21 days, rendering the application defective. The court held that as a county government, the respondent is bound by the Government Proceedings Act by dint of section 21(5), and that the elaborate procedure under section 21 and Order 29 of the Civil Procedure Rules must be strictly complied with before mandamus can issue. Although the applicant had a decree and a certificate of costs, he had no Certificate of Order and had not proved service of the required certificates. The court found the applicant had not fully complied with the legal requirements for mandamus, held the application premature, struck out the notice of motion dated 19th April 2019, and ordered each party to bear their own costs. Judgment was delivered electronically on 27th April 2020 pursuant to COVID-19 court operation directives.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the ex parte applicant complied with section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules as a precondition to an order of mandamus compelling a county government to satisfy a decree
  2. 2.Whether the notice of motion seeking mandamus is premature

Key legal issues

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01

Compliance with section 21 Government Proceedings Act as precondition to mandamus

Holding

The applicant must obtain a Certificate of Order in addition to the certificate of costs, serve it, and demonstrate compliance before mandamus can issue

Reasoning

Section 21(5) applies the Government Proceedings Act to county governments. The procedure for execution of money decrees against government requires a certificate of costs and a certificate of order, served, with a demand for payment. The applicant had a decree and certificate of costs but no certificate of order, so the application was premature.

p. 3

Legal principles established

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  • Before mandamus compelling a county government to pay a decree is issued, the procedure under section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules must be strictly complied with
  • After obtaining the certificates, there must be proof of service on the respondents

Court orders

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  1. 1.The Notice of Motion dated 19th April, 2019 is struck out
  2. 2.Each party shall bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

Jurisdiction invoked
Order 53 Rule 1 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act

Relief refused

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Order of mandamus compelling the 2nd respondent to comply with the decree in Nakuru ELRC Cause No.124 of 2016 and the certificate of costs

The applicant did not obtain a Certificate of Order and did not fully comply with the statutory procedure; the application was premature

p. 3

Costs

Each party shall bear own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the Notice of Motion dated 19th April, 2019 is hereby struck out. Each party shall bear own costs.
p. 3Final orders - striking out for non-compliance
The court finds the ex parte applicant has not fully complied with the legal requirements for an order of mandamus to be issued in this instance. The application is premature.
p. 3Preconditions to mandamus against a county government
The procedure, in my view is not meant to relieve the county from meeting its statutory obligations to satisfy decrees and orders of the Court.
p. 3Purpose of section 21 procedure

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 Nakuru & another; James Mwangi Muraya (Ex parte) [2020] KEELRC 1019 (KLR)", Case Analysis (2020). Judicial Review Application (Notice of Motion) dated 19th April, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1019/eng@2020-04-27

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