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ELRCPartially AllowedNot stated in the judgment (Judicial Review Application, High Court Kisumu)· [2025] KEELRC 929 (KLR)

Ayugi v Omondi & 2 others (Judicial Review E026 of 2024) [2025] KEELRC 929 (KLR)

High Court of Kenya
26 March 2025
3,430 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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The High Court ordered government officials to pay a Kshs.6.7 million judgment after 18 months of inaction, confirming mandamus as the route to enforce decrees against the Government in Kenya.

What this practically means

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Executive summary

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The ex parte applicant, Stephen Onyango Ayugi, moved the High Court at Kisumu by Notice of Motion dated 16th August 2024 seeking orders of mandamus compelling the respondents to satisfy the judgment of Nduma Nderi J. delivered on 21st February 2019 in Kisumu ELRC Petition No. 367 of 2017, which awarded him Kshs.3,500,000 in general damages, interest amounting to Kshs.2,641,166.70, taxed costs of Kshs.616,535 and interest on costs. The applicant contended that the Certificate of Order had been served on the Attorney General on 23rd November 2022 but no payment had been made. The respondents opposed, asserting the delay was caused by the non-availability of a certified copy of the judgment, and their counsel conceded the application was justifiable. The court framed a single issue: whether the application was merited. Applying Section 21 of the Government Proceedings Act and established authority, the court held that mandamus is the only method of enforcing money decrees against the Government, that the applicant had complied with the conditions precedent by serving the Certificate of Order, and that the respondents' inaction of over one and a half years constituted an implied refusal through unreasonable delay. The court noted discrepancies: the application omitted the 1st respondent found liable, and no 5th respondent featured in the application even though the underlying judgment attached liability to five parties. The court allowed the application, issuing mandamus against the 3rd, 4th and 5th respondents for the general damages and against the 1st, 3rd, 4th and 5th respondents for interest and taxed costs, with those respondents to bear the costs of the application.

Key legal issues

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01

Whether mandamus lies against the respondents to satisfy the judgment in ELRC Petition No. 367 of 2017

Holding

Yes. The applicant complied with Section 21 of the Government Proceedings Act by serving the Certificate of Order on the Attorney General, and the respondents' inaction since November 2022 amounted to an implied refusal through unreasonable delay, justifying mandamus.

Reasoning

The court applied Section 21 of the Government Proceedings Act, which provides the only road map for recovering money decrees against Government since execution is barred. The applicant served the Certificate of Order on 23rd November 2022, yet the respondents made no proposals for payment and could not demonstrate what steps they had taken. Their excuse regarding a certified copy of the judgment was unavailing since the request came over four months after service. Following established authority, the delay of over one and a half years could not qualify as reasonable and constituted an implied refusal, triggering mandamus compelling the accounting officers to pay.

p. 6
02

Whether the respondents' conduct amounted to refusal to pay

Holding

Although respondents' counsel asserted they had not declined to pay, no cogent evidence of steps towards payment was provided; unreasonable delay is an implied refusal.

Reasoning

Counsel for the respondents blamed the absence of a certified copy of the judgment, but the court noted no action was taken between 4th April 2023 and 15th November 2024, despite the Certificate of Order having been served in November 2022. No proposals for payment were made, and the respondents' own advocate admitted the application was justifiable. The court invoked the Apotex principle that an implied refusal through unreasonable delay suffices for mandamus, and held the delay since November 2022 unreasonable.

p. 6
03

Against which respondents mandamus should issue

Holding

Mandamus was issued against those respondents against whom the underlying judgment attached liability, but not against the 2nd respondent who was found not culpable, and noting the applicant omitted the 1st respondent.

Reasoning

On scrutinising the underlying judgment, the court observed the claimant had sued five persons including the Attorney General, that the 2nd respondent was not held culpable, and that the 1st respondent (liable for special damages and costs) had been omitted from the application. The court found the application misleading as to which respondents were being pursued. It nonetheless issued mandamus in terms that tracked the liability as found by Nduma Nderi J., directing payment orders against the 3rd, 4th and 5th respondents for the general damages and against the 1st, 3rd, 4th and 5th respondents for interest and costs.

p. 4

Legal principles established

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  • Money decrees against the Government can only be enforced by way of an order of mandamus compelling the accounting officer to pay, as execution against Government property is barred
  • Mandamus lies to compel performance of a public duty which is imperative, not optional or discretionary
  • Unreasonable delay by a public officer constitutes an implied refusal sufficient for mandamus to issue

Court orders

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  1. 1.An Order of mandamus directed to the 3rd, 4th and 5th respondents to pay Kshs.3,500,000.00 ordered by Nduma Nderi J. in Kisumu ELRC Petition No. 367 of 2017
  2. 2.An Order of mandamus directed to the 1st, 3rd, 4th and 5th respondents to pay Kshs.2,641,166.70 being interest accrued from the date of judgment
  3. 3.An Order of mandamus directed to the 1st, 3rd, 4th and 5th respondents to pay Kshs.616,535 being costs of the suit
  4. 4.The 1st, 3rd, 4th and 5th respondents shall bear the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 1, 2 and 3; Order 21 Rule 1
  • Law Reform ActNot specified
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual, High Court Practice and Procedure Rules) 2006Not specified
  • County Governments ActSection 134
  • Public Finance Management ActSection 129
  • Government Proceedings ActSection 21
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Civil Procedure ActSection 1B

Cases cited (11)

  • Evanison Jidraph Kamau & Another V Attorney General Mombasa HC Misc. App. No. 40 of 2000
  • Republic V Commissioner of Lands & Another Ex parte Peter Kithinji Murugu Magere HC Misc. App. No. 3957 of 2012
  • Republic V Kenya National Examination Council Ex Parte Gathenji & 9 Others
    [1997] eKLR
  • Republic V Principal Secretary, Ministry of Internal Security & Another Ex Parte Schon Noorani & Another
    [2018] eKLR
  • Repubic V Attorney General & Another Ex Parte Stephen Wanyee Roki
    [2016] eKLR
  • Republic V Permanent Secretary Ministry of State for Provincial Administration & Internal Security
    [2012] eKLR
  • Republic V Town Clerk of Webuye County Council & Another
    HCCC 448 of 2006
  • Ibrahim Mungara Mwangi V Francis Ndegwas Mwangi
    [2014] eKLR
  • Republic V Kenyatta University of Agriculture and Technology Ex Parte Elijah Kamau Mwangi
    [2021] eKLR
  • Republic V Permanent Secretary Ministry of State for Provincial Administration and Internal Security Ex Parte Fredrick Manoah
  • Apotex Inc V Canadian Attorney General
    [1993] Can LII 3004(F.C.A), [1994] I.F.C 742 (CA)
Jurisdiction invoked
Order 53 Rules 1, 2 and 3 of the Civil Procedure Rules; Law Reform Act; Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual, High Court Practice and Procedure Rules 2006; Section 134 of the County Governments Act read with Section 129 of the Public Finance Management 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, "Ayugi v Omondi & 2 others (Judicial Review E026 of 2024) [2025] KEELRC 929 (KLR)", Case Analysis (2025). Not stated in the judgment (Judicial Review Application, High Court Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/929/eng@2025-03-26

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