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ELRCAllowedJudicial Review Miscellaneous Application (Chamber Summons dated 25th March 2025), Kisii· [2025] KEELRC 2774 (KLR)

Republic v Clerk Kisii County Assembly & another; Nyabuto (Ex parte Applicant) (Judicial Review Application E004 of 2025) [2025] KEELRC 2774 (KLR)

High Court of Kenya
14 October 2025
NMNzioki Wa Makau
1,593 words in judgment
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The bottom line

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Kenya's High Court cleared the way for a judgment creditor to force Kisii County Assembly's accounting officer to pay an admitted debt by mandamus.

What this practically means

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Executive summary

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By Chamber Summons dated 25th March 2025, the Ex-Parte Applicant sought leave to apply for mandamus compelling the Respondents to pay a decretal sum of Kshs. 337,480/- plus taxed costs of Kshs. 133,975/- awarded in Kisii ELRC No. E007 of 2021, judgment having been delivered on 27th June 2024. She averred that the certificate of order against the Government, decree and certificate of costs were served on the 1st Respondent on 3rd March 2025 without payment. The Respondents, through a replying affidavit of Mr. Jacob M. Oneko, opposed the application, contending that the parties sued in the underlying suit were the Kisii County Assembly, the Kisii County Assembly Service Board and Hon. Evans Omwansu Mokoro; that the Board is a body corporate; that Hon. Mokoro was wrongly omitted; that the 1st and 2nd Respondents are essentially the same entity; and that the amount owed was Kshs. 235,757.50, payable subject to budgetary allocation and Controller of Budget approval. The Applicant relied on Kungu v County Government of Nairobi, the Webuye Town Clerk decision, the Noorani principles for mandamus, and section 148(4) of the Public Finance Management Act, 2012, designating the Clerk as accounting officer. The Respondents relied on section 21 of the Government Proceedings Act and the Kenya National Examinations Council decision. The court found Hon. Mokoro not a proper or necessary party since he is not Government and holds no Government funds, that the 2nd Respondent is the arm of the accounting officer, that the debt was admitted, and that the 1st Respondent is statutorily bound to pay. Leave was granted, with the substantive motion to be filed within 21 days in a distinct file, and costs to the Applicant.

Key legal issues

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01

Non-joinder of Hon. Mokoro and the County Assembly Service Board

Holding

Non-joinder objection fails; Hon. Mokoro was not a proper or necessary party to proceedings for a certificate of order against Government

Reasoning

The court held that a certificate of order against Government binds only Government funds. Hon. Mokoro is not Government and holds no Government funds, so he could be conveniently excused. The 2nd Respondent is the arm of the accounting officer and its inclusion had no effect on the outcome since it can only pay what was decreed. The Applicant did not circumvent the mandamus process.

p. 3
02

Statutory duty to pay and admission of the debt

Holding

Leave for mandamus granted; the debt is admitted and the accounting officer is statutorily bound to pay

Reasoning

The Respondents admitted owing Kshs. 235,757.50, payable subject to budgetary allocation and Controller of Budget approval. The 1st Respondent, as accounting officer under section 148(4) of the Public Finance Management Act, 2012, is under a statutory duty to pay. The 2nd Respondent cannot make any payment beyond what was decreed.

p. 4

Legal principles established

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  • The Clerk to the County Assembly, as accounting officer, is under a statutory duty to pay decretal amounts against the County Assembly under section 148(4) of the Public Finance Management Act, 2012
  • A person who is not Government and holds no Government funds is not a proper or necessary party to proceedings seeking a certificate of order against Government

Court orders

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  1. 1.Leave granted to the Ex-Parte Applicant to commence judicial review proceedings in the nature of mandamus to compel payment of the debt due by the Respondents
  2. 2.Leave permits the Applicant to seek, through the substantive motion, a Certificate of Order against Government compelling the Respondents to jointly pay the sum owed
  3. 3.The substantive motion must be filed within 21 days in a distinct file
  4. 4.Respondents liable for costs of this application
Jurisdiction invoked
Order 53 of the Civil Procedure Rules (leave to apply for judicial review - mandamus); section 148(4) Public Finance Management Act, 2012; section 21 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 Clerk Kisii County Assembly & another; Nyabuto (Ex parte Applicant) (Judicial Review Application E004 of 2025) [2025] KEELRC 2774 (KLR)", Case Analysis (2025). Judicial Review Miscellaneous Application (Chamber Summons dated 25th March 2025), Kisii. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2774/eng@2025-10-14

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