Republic v Chief Officer, Department of Finance, Migori County & 2 others; Barnabas (Ex parte Applicant) (Judicial Review Miscellaneous Civil Application E003 of 2023) [2025] KEELC 6832 (KLR)

2. The application is supported by the afidavit of Chacha Mtundi Barnabas sworn on the same date. He avers that judgment was entered in his favour on 17th February 2021, that a valid decree exists, and that despite demand, the Respondents have failed to satisfy the decree, thus necessitating these proceedings. 3. The Respondents opposed the application through Grounds of Opposition dated 15th February 2024 contending that: the Ex-parte Applicant had failed to meet the jurisprudential and evidential threshold required for the grant of an order of mandamus. They further contended that there was no proof of service of either the decree or a formal demand upon them, and maintained that the application was premature, misconceived, frivolous, and vexatious. 4. By directions of the Court, the matter was canvassed through written submissions. I have carefully considered the pleadings, submissions, authorities cited and the law. Issues for Determination 5. The issues arising for determination are: a. Whether the Applicant has satisfied the legal requirements for the grant of an order of mandamus. b. Whether the application is merited. c. Whether the Applicant is entitled to costs. Legal Analysis 6. The nature of the remedy of mandamus has been elaborated in a long line of authorities. In Republic vs. Kenya National Examinations Council ex parte Gathenji & 8 Others [1997] eKLR, the Court of Appeal cited with approval Halsbury’s Laws of England (4th Edn. Vol. 7 p.111 para 89): “ The order of mandamus is of most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their ofice and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right…” 7. In R (Regina)vs. Dudsheath, ex parte, Meredith [1950] 2 All E.R. 741, at 743, Lord Goddard C. J. said "It is important to remember that "mandamus" is neither a writ of course nor a writ of right, but that it will be granted if the duty is in the nature of a public duty, and specially afiects the rights of an individual, provided there is no more appropriate remedy. This court has always refused to issue a mandamus if there is another remedy open to the party seeking it. This is one of the reasons, no doubt, why, where there is a visitor of a corporate body, the court will not interfere in a matter within the province of the visitor, and especially this is so in matters relating to educational bodies such as colleges." 8. Similarly, the Court in Republic v Town Clerk, Kisumu Municipality, ex parte East African Engineering Consultants [2007] 2 EA 441 underscored that mandamus is the means through which the State, in the name of the Republic, compels its oficers to comply with the law. Execution proceedings do not apply to government or public bodies due to statutory limitations such as section https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6832/eng@2025-07-21 2

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21(4) of the Government Proceedings Act, which prohibits attachment of government property. The only viable route to enforce payment of a decree against government is through mandamus. 9. The jurisprudence is consistent: the order will not issue where the duty sought to be enforced is uncertain, conditional or disputed. As observed in Newton Gikaru Githiomi & Another v AG/Public Trustee Nairobi HC JR 472 of 2014, where the court stated:"It must be remembered that judicial review orders are discretionary. Since they are not guaranteed, a court may refuse to grant them even where the requisite grounds exist since the court has to weigh one thing against another and see whether or not the remedy is the most eficacious in the circumstances obtaining. Further, as the discretion of the court is a judicial one, it must be exercised on the evidence of sound legal principles. The court does not issue orders in vain even where it has jurisdiction to issue the prayed orders and would refuse to grant judicial review remedy when it is no longer necessary; or has been overtaken by events; or where issues have become academic exercise; or serves no useful or practical significance. Since the court exercises a discretionary jurisdiction in granting prerogative orders, it can withhold the gravity of the order where among other reasons there has been delay and where a public body has done all that it can be expected to do to fulfil its duty or where the remedy is not necessary or where its path is strewn with blockage or where it would cause administrative chaos and public inconvenience or where the object for which application is made has already been realised.” 10. Whereas the Court may compel the performance of the general duty where such duty exists, it will however not compel its performance in a particular manner for example by compelling the respondent to pay a particular amount unless that amount has been ascertained. This position was appreciated by the Court of Appeal in Republic vs. Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 266 of 1996 as follows:“The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way...These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. An order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same but if the complaint is that the duty has been wrongfully performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done...” [Emphasis added]. 11. Turning to the present case, it is undisputed that judgment was entered in Migori ELC No. 9 of 2018 in favour of the Ex-parte Applicant. The decretal sum has been ascertained at Kshs. 1,504,385.00, and the decree remains unsatisfied. The Respondents have not demonstrated that the decree was set aside, stayed, or otherwise compromised. 12. The Respondents argue that there was no evidence of service of the decree or demand. In my view, that objection cannot defeat the Applicant’s claim. Once a decree exists, the Respondents are under a legal duty to satisfy it. The duty fiows not from service of demand but from the decree itself. The Applicant, as decree-holder, is entitled to the fruits of his judgment. To deny him this would amount to a denial of justice contrary to Article 48 of the Constitution which guarantees access to justice. 13. Furthermore, as the Respondents are a County Government and its oficers, execution in the ordinary civil process is barred by section 21(4) of the Government Proceedings Act, which provides: “…no https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6832/eng@2025-07-21 3

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execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Government of any money or costs…” 14. Thus, the only lawful remedy available to the Applicant is an order of mandamus. 15. I am satisfied that the Applicant has demonstrated a clear, specific, and enforceable legal right; that the Respondents owe a public duty to pay the decretal sum; and that no alternative efiective remedy exists. This is precisely the kind of situation mandamus is designed to remedy. Costs 16. Section 27 of the Civil Procedure Act provides that costs follow the event. Having succeeded in this application, the Applicant is entitled to costs against the Respondents. Conclusion and Orders In the result, I find the Ex-parte Applicant’s Notice of Motion dated 3rd October 2023 merited. Accordingly, I make the following orders: a. An order of mandamus is hereby issued compelling the Respondents to pay the Ex-parte Applicant the decretal sum of Kshs. 1,504,385.00, being the amount due under the decree in Migori ELC No. 9 of 2018. b. The Respondents shall comply with this order and settle the decretal sum within one hundred and twenty (120) days from the date of this judgment. c. The Ex-parte Applicant shall have the costs of this application. It is so decided! DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21ST DAY OF JULY 2025. MOHAMMED N. KULLOW JUDGE Judgment delivered in the presence of: N/A for Plaintifi/Applicant N/A for the Defendants Philomena Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6832/eng@2025-07-21 4

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