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High CourtAllowedNotice of Motion filed 22.1.2026 (Judicial Review), High Court Nyeri· [2026] KEHC 12498 (KLR)

Republic (Ex parte Applicant) v Principal Secretary (Accounting Officer) & 2 Others

High Court of Kenya
30 July 2026
4,587 words in judgment
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The bottom line

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The High Court in Nyeri ordered a government accounting officer to pay a court judgment debt of over Kshs 5.7 million, ruling that budget shortages are no excuse.

What this practically means

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Executive summary

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The ex parte Applicant, a decree holder in Nyeri CMCC No. E1005 of 2024, sought an order of mandamus compelling the 3rd Respondent, the accounting officer, to pay Kshs. 5,710,781.95 plus interest at 14% per annum from 20.11.2024, pursuant to a decree issued on 2.10.2025 and a Certificate of Order Against the Government dated 14.11.2025. The Respondents did not dispute the debt but opposed the application on the ground that the Ministry had exhausted its budgetary allocation and needed to await parliamentary allocation in a suitable financial year. The Applicant relied on authority establishing that enforcement of monetary decrees against the Government is by mandamus against the accounting officer under section 21 of the Government Proceedings Act, and that payment is not conditional on budgetary allocation. M. D. Kizito, J. held that section 21(4) bars execution against the Government, leaving mandamus as the only remedy; that mandamus is not execution but an administrative action compelling a public officer to perform a statutory duty owed to the subject; and that non-compliance would amount to insubordination and contempt of court. The court invoked Article 48 on access to justice, holding that a decree holder cannot be left indefinitely with a barren decree. The application was allowed with costs of Kshs. 75,000/= to the Applicant.

Key legal issues

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01

Whether mandamus lies to compel the accounting officer to satisfy a decree against the Government despite budgetary constraints

Holding

Yes. Section 21(4) bars execution against the Government, leaving mandamus as the only remedy, and payment is not conditional on budgetary allocation.

Reasoning

The court relied on section 21 of the Government Proceedings Act and precedent holding that once a certificate of order against the Government is served on the Attorney General, a statutory duty falls on the accounting officer to pay. The Respondents' plea of exhausted budgetary allocation was rejected because the statute does not condition payment on parliamentary approval in a later financial year, and delay would leave the applicant with a barren decree contrary to Article 48.

p. 13
02

Whether mandamus against a public officer amounts to execution against the Government

Holding

No. Mandamus compels the officer to perform a statutory duty and is not execution or attachment, nor does it make the officer individually liable.

Reasoning

Following Shah v Attorney General (No. 3), the court reasoned that the relief sought is not relief against the Government but compels a government official to do what Parliament has directed. The officer owes a duty to the subject as well as to the Government, and mandamus does not fall within the prohibition in section 21(4) on execution or attachment.

p. 16
03

Consequences of non-compliance with an order of mandamus

Holding

Failure to comply amounts to insubordination and contempt of court, for which the officer may be cited.

Reasoning

The court held that contempt proceedings arising from disobedience of mandamus are not execution proceedings but serve to show the court's displeasure at a servant of the state failing to comply with a directive given at the instance of the Republic, and to uphold the dignity and authority of the court.

p. 13

Legal principles established

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  • Enforcement of monetary decrees against the Government is by mandamus against the accounting officer, not execution, and payment is not conditioned on budgetary allocation
  • Once the certificate of order against the Government is served on the Attorney General, section 21(3) imposes a statutory duty on the accounting officer to pay
  • Where no other remedy remains, the court has no discretion to withhold mandamus
  • Mandamus is not a mode of execution but an administrative action to compel a public officer to perform a statutory duty

Court orders

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  1. 1.An Order of Mandamus issued to compel the 3rd Respondent to pay the Applicant Kshs. 5,710,781.95 being the decretal amount in Nyeri CMCC No. E005 of 2024 certified on the judgment dated 20.11.2024, decree issued 2.10.2025 and Certificate of Order Against the Government dated 14.11.2024
  2. 2.An Order of Mandamus against the 3rd Respondent compelling him to pay interest as awarded by the trial court at 14% per annum from 20.11.2024 until payment in full
  3. 3.Costs of the application awarded to the Applicant assessed at Kshs. 75,000/=

Authorities

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Legislation

  • Government Proceedings Act (Cap 40)section 21(1), (2), (3) and (4)
  • Government Proceedings Act (Cap 40)Preamble
  • Government Proceedings Act (as applied in Shah v Attorney General)sections 15(2), 20(3), 20(4), 29(1)
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 129

Cases cited (10)

  • Republic v County Secretary, Government of Nairobi County & 5 others; Faram East Africa Limited (Ex parte Applicant)
    [2025] KEHC 11890 (KLR)

    Enforcement of monetary decrees against Government not conditional on budgetary allocation

  • Republic vs. Permanent Secretary Ministry of State for Provincial Administration and Internal Security
    [2012] eKLR

    Mandamus compels accounting officer to pay decretal amount; payment not conditioned on budgetary allocation

  • Republic v Principal Secretary Ministry of Education & Principal Secretary Ministry of Finance and National Treasury; Ex parte Timothy Macharia
    [2021] KEELC 1573 (KLR)

    Decree holder entitled to fruits of judgment; mandamus is the only option under section 21(3)

  • Republic v Attorney General & Another Ex parte Ongata Works Limited
    [2016] eKLR

    Mandamus to compel accounting officer's statutory duty

  • Republic vs. Kenya National Examinations Council ex parte Gathengi & 8 Others
    Civil Appeal No 234 of 1996

    Nature and purpose of mandamus, citing Halsbury's Laws of England

  • R (Regina) vs. Dudsheath, ex parte Meredith
    [1950] 2 ALL E.R. 741

    Mandamus is neither a writ of course nor of right; refused where another remedy exists

  • Republic vs. Town Clerk, Kisumu Municipality, Ex Parte East African Engineering Consultants
    [2007] 2 EA 441

    Mandamus procedure for enforcing decrees against Government

  • Shah vs. Attorney General (No. 3)
    Kampala HCMC No. 31 of 1969 [1970] EA 543

    Extensive exposition of mandamus against government officials under statutory duty

  • Jotham Mulati Welamondi vs. The Electoral Commission of Kenya
    Bungoma H.C. Misc. Appl. No. 81 of 2002 [2002] 1 KLR 4

    Judicial review proceedings are neither criminal nor civil

  • Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others
    SC Petition No. 4 of 2012; [2014] eKLR

    Guiding principles on award of costs; costs follow the event

Jurisdiction invoked
Judicial review jurisdiction of the High Court to issue mandamus under the Government Proceedings Act, section 21; Article 48 of the Constitution on access to justice invoked

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 (Ex parte Applicant) v Principal Secretary (Accounting Officer) & 2 Others", Case Analysis (2026). Notice of Motion filed 22.1.2026 (Judicial Review), High Court Nyeri. Source: 

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