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ELRCStruck OutJudicial Review Motion dated 7 February 2024, filed 8 February 2024· [2024] KEELRC 1203 (KLR)

Republic v County Government of Kisumu & 3 others; Nakitari (Exparte Applicant) (Judicial Review Application E002 of 2024) [2024] KEELRC 1203 (KLR)

High Court of Kenya
22 May 2024
RSRadido Stephen
919 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The ex parte applicant, Humphrey Okuku Nakitare, obtained leave on 5 February 2024 to commence judicial review proceedings, filed on 8 February 2024, seeking to enforce a decree against the Respondents. He had extracted and served a decree upon the Respondents on 7 September 2023 and formally demanded payment by letter dated 8 September 2023; the Respondents did not pay, prompting these proceedings. After several attempts at out-of-court settlement failed, the parties filed affidavits and submissions, with the Respondents' submissions never filed within the agreed timeline. The Court, in a judgment delivered virtually from Kisumu on 22 May 2024, framed the matter around the requirements for execution against the government under section 21 of the Government Proceedings Act and Order 29 Rule 3 of the Civil Procedure Rules. Adopting and applying the holding in R v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex-parte Fredrick Manoah Egunza (2012) eKLR, the Court held that a Certificate of Order against the Government, served on the County Attorney where execution is against a County Government, is a condition precedent to enforcement by mandamus, the government enjoying immunity from attachment of its property under section 21(4) of the Act, and that payment is not conditioned on budgetary allocation or parliamentary approval. The applicant had not exhibited any such Certificate or explained its absence. The Court therefore struck out the Motion for being incompetent and made no order on costs, reasoning that the Respondents themselves had not filed a response within the agreed timelines.

Key legal issues

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01

Whether enforcement proceedings against the government are competent without a Certificate of Order against the Government

Holding

The Motion was struck out as incompetent because the applicant failed to exhibit a Certificate of Order against the government under section 21 of the Government Proceedings Act and Order 29 Rule 3 of the Civil Procedure Rules.

Reasoning

The Court, applying R v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex-parte Fredrick Manoah Egunza, held that a Certificate of Order against the Government is a condition precedent to mandamus enforcing a money decree against the government. Where execution is against a County Government, the certificate should be served on the County Attorney rather than the Hon Attorney General. The applicant obtained and served a decree and formally demanded payment, but did not exhibit or explain the absence of the certificate, so the proceedings were incompetent.

p. 3

Legal principles established

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  • A Certificate of Order against the Government, issued after expiration of 21 days after entry of judgment and served on the County Attorney (in the case of a county government), is a condition precedent to enforcement of money decrees against the government, and payment thereon is not conditioned on budgetary allocation or parliamentary approval
  • Decrees against a county government are enforced only by way of mandamus compelling the accounting officer, the government being immune from attachment under section 21(4) of the Government Proceedings Act

Court orders

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  1. 1.The Motion dated 7 February 2024 and filed in Court on 8 February 2024 is struck out for being incompetent
  2. 2.No order on costs
Jurisdiction invoked
Judicial review jurisdiction of the High Court, with leave granted on 5 February 2024 to commence judicial review proceedings; execution against government governed by section 21 of the Government Proceedings Act

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 Kisumu & 3 others; Nakitari (Exparte Applicant) (Judicial Review Application E002 of 2024) [2024] KEELRC 1203 (KLR)", Case Analysis (2024). Judicial Review Motion dated 7 February 2024, filed 8 February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1203/eng@2024-05-22

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