keelc-2025-08212

JUDGMENT 1. John Michael Wanjao, the Ex-parte Applicant herein was on 25.07.2024 granted Leave to file the Substantive Motion seeking the relevant reliefs under Judicial Review. The said leave was extended on 25.09.2024. 2. Pursuant to the leave granted by the court, difierently constituted, the Ex-parte Applicant thereafter filed the substantive Notice of Motion dated 27th September, 2024 seeking the following orders: i. That an Order of Mandamus do issue compelling the Respondents, County Secretary County Government of Uasin Gishu, the County Executive Committee for Finance County Government of Uasin Gishu and the Chief Oficer Finance, County Government of Uasin Gishu to pay/satisfy the judgement or Decree of Kshs. 3,000,000/=made on 28.02.2019, interest of Kshs. 2,310,000/= together with taxed costs of Kshs. 184,303.70 in Eldoret ELC No. 285 of 2013. ii. In the alternative, the Honourable Court summons the Respondents to appear before it to explain the non-payment of the sum of Kshs. 3,000,000/=, interest of Kshs. 2,310,000/= made on 28.02.2019 together with taxed costs of Kshs. 184,303.70. iii. That this Honourable Court be pleased to give such further orders and directions as it may deem fit and just to grant. iv. That costs for this Application be provided for. 3. The application is premised on the 7 grounds on its face thereof and supported by the Afidavit of the ex-parte applicant, John Michael Wanjau sworn on even date. 4. He deponed that he instituted a claim against the respondents vide Eldoret Elc Case NO. 285 OF 2013, seeking compensation for the unlawful withdrawal of the approval of his building plans and stopping the developments on his suit land without any notice and/or justification. 5. The matter was heard and determined vide the judgment issued on 21.02.2019, which was entered in his favor in the sum of Kshs. 3,000,000/=as general damages and interests. That the interest accrued stands at Kshs. 2,310,000/= at the moment. 6. It is his claim that pursuant to the said judgment, a Certificate of Order and for Costs against the County Government was issued by the court on 29.04.2024 and served upon the County Attorney on 03.05.2024. 7. He thus averred that despite knowledge of the judgment and service of the certificate of order and for costs against the county government, efiorts to have the respondents satisfy the decretal sum have been in vain. 8. It is his contention that he should be allowed to enjoy the fruits of his judgment as the continued delay and refusal to satisfy the judgment by the respondents, jointly and severally is causing him psychological torture. 9. He thus maintained that the application should be allowed to compel the respondents to settle the decretal sum and for the ends of justice to be met. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8212/eng@2025-11-27 2

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10. The application was opposed. The Respondents filed a Replying Afidavit dated 4th August, 2025, sworn by one Phillip Meli, the County Secretary for the Respondent. 11. He dismissed the application as being time barred, contra-statute and a nullity for being filed after 6 months from the date of the decision. He averred that the ruling subject to the Judicial Review proceedings herein was issued on 21.02.2020. 12. It was also his claim that the Ex-parte Applicant did not comply with the provisions of section 21(1) & (2) of the Government Proceedings Act with respect to the application for a Certificate of Order against the Government. 13. Further, it was his contention that if the Certificate of Order against the Government was obtained, then the same was not served upon the Accounting Oficer of the Respondent or the relevant department within the County Government as provided in section 2(3) of the Government Proceedings Act. 14. He thus maintained that the proceedings being in respect on the execution of a decree against the government is defective for want of the extraction, application and service of the Certificate of Order against the Government as stipulated in sections 21(4) & (5) of the Government Proceedings Act. 15. In addition, he explained that all expenditures by the County Government are appropriated by the County Assembly in each financial year. That the respondent must strictly abide by the statutory process, authorization and budgetary appropriation before the settlement of its debts. 16. He therefore deponed that granting the orders sought without the prior approvals and statutory compliance would be tantamount to the court usurping the powers of the County Assembly to appropriate funds of Uasin Gishu County. 17. He added that the County Budget Cycle is already closed for the Financial Year 2024/2025 and funds that can be spent are already budgeted and duly approved. 18. It is his contention that the Respondent shall be ready to pay the ex-parte applicant upon funds for the decretal sum is allocated, approved and passed by the County Assembly as provided under section 125 of the Public Finance Management Act, 2012. 19. He argued that the County Assembly control over expenditure is based upon the principle that all expenditure must rest upon legislative authority as governed by the County Government Act and Public Finance Management Act. 20. He thus stated that in the event the motion is allowed, he urged the court to grant the County Government time to enable it factor in the said debt in its next financial cycle of 2025/2026 in compliance with the governing statutory provisions. 21. The application was canvassed by way of written submissions. The ex-parte applicant filed her submissions dated 03.09.2025 and Supplementary submissions dated 06.10.2025 while the respondents filed their written submissions dated 30.09.2025 together with authorities which I have read, duly considered and summarized as hereunder: - Ex-parte Applicant’s Submissions; 22. Counsel for the ex-parte applicant submitted on one main issue; whether an order of Mandamus should issue against the respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8212/eng@2025-11-27 3

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23. He submitted that for an order of mandamus to be granted the Applicant must satisfy the Court that the Respondents has a legal duty whether statutorily or at common law which the Applicant expects the Respondents to fulfill and the Respondent has failed to do so. 24. Further, that section 21 of the Government Proceedings Act provides as follows as regards the requirements to be met in the enforcement of orders as against Government organs, both National and County, in civil proceedings. 25. Counsel argued that it is not disputed that judgment for damages of Kshs 3,000,000 and costs was entered in favour of the ex parte Applicant in Eldoret ELC No 285 of 2013. The issues therefore that require to be determined are firstly, whether the Respondents are under a public duty and obligation to satisfy the orders issued in favour of the ex parte Applicant in the said judgment, and secondly, if so, whether the ex parte Applicant is entitled to the relief he seeks. 26. They further submitted that the Respondents are under a duty to pay the subject decretal sums, costs and interest under the laws. That an order of mandamus is normally issued when an Oficer or an Authority by compulsion of law or statute is required to perform a duty, and that duty, despite demand in writing, has not been performed. 27. He added that execution proceedings against a government or public authority under the Government Proceedings Act can only be as against the accounting oficer or chief oficer of the said government or authority, who is under a statutory duty to satisfy a judgment made by the Court against that body. 28. It was their contention that the provision of section 103 of the Public Finance Management Act No 18 of 2012 establishes the County Treasury comprising of the County Executive Member of Finance, the Chief Oficer and the departments of the County Treasury responsible for finance and fiscal matters. Under section 103(3) of the Act, the County Executive Committee Member for Finance is the head of Treasury, and is thus the responsible for finance matters in the County. 29. They therefore submitted that from the afore mentioned provisions, the Respondents are jointly and severally responsible for the satisfaction of Court orders and decrees on payment of money waived by the Uasin Gishu County by virtue of their roles and functions. 30. They added that the ex parte Applicant ought to enjoy fruits of her judgment and this Court ought to support Her in Her endeavour. Thus urged the court to find that the application dated 16/08/2024 is merited and proceed to issue an order of mandamus against the Respondents with costs 31. Counsel relied on the following decisions in further support of their case; Republic v Kenya Civil Aviation Authority & another ex-parte Elite Earthmovers Limited [2017]eKLR, The Republic v. Director-General of East African Railways Corporation, ex parte Kaggwa (1997) KLR 194, Republic vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) eKLR, Judicial Review Application No. E013 of 2025,Muchemi J and High Court of Kenya at Kisumu, Judicial Review Misc Application No. 10 of 2019. 32. In the supplementary submissions while addressing the claims that the proceedings are time barred by dint of the provisions of Order 53; counsel submitted that the Respondents have misconstrued the law, that it is clear that section 9(2) does not limit the time for filing an application for mandamus to six months but provides that rules made to provide for the procedure of the courts may limit such time. That the procedural rules which are the only applicable rules do not provide for such a limitation on time in relation to an application for orders of mandamus but only when seeking for orders of certiorari. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8212/eng@2025-11-27 4

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33. They thus submitted that the Respondents averments are farfetched, evasive and are meant to muddle up the matter and urge this Court to disregard them. The six months rule does not apply. 34. Consequently, urged the Court do allow the application dated 16/08/2024 and issue an order of mandamus against the Respondents together with costs. 35. In support of these assertions, counsel cited and relied on the decisions in the following cases; Joseph Muriithi Nyaga v Embu County Government [2021] eKLR, Zedka Services Limited v County Secretary, Uasin Gishu County &another (Judicial Review 7 of 2023) [2024] KEHC 5908 (KLR) (24 May 2024) and Republic v Clerk Nyandarua County Assembly; Ndegwa (Exparte Applicant) (Judicial Review E002 of 2024) [2025] KEHC 3831 (KLR) (Judicial Review) (27 March 2025) Respondents’ Submissions: 36. Counsel for the respondents submitted on 3 issues for determination; whether the application is time barred, contra-statute and a nullity, whether the application ofiends the provisions of the Civil Procedure Rules and the Law Reform Act and whether the Judicial Review is time barred. 37. On the first issue, it was their submission that the application is time barred, contra statute and a nullity. That pursuant to Order 53 Rule 1 & 2 of the Civil Procedure Rules, leave to file an application for Judicial Review must be filed within 6 months from the date of the judgment or decision. 38. Counsel argued that the court has no discretion to enlarge time within which to file the application for leave. The ruling subject to the Judicial Review Application was issued on 19.02.2020. 39. Similarly, she submitted that section 9(2) &(3) of the Law Reform Act Cap 26 of the Laws of Kenya provides that applications for an order of mandamus, prohibitions or certiorari shall in specified proceedings be made within six (6) months, or such shorter period as may be prescribed and in the case of an application for an order of certlorari to remove any judgment, order, decree, conviction or other proceedings for the purposes of its being quashed, leave shall not be granted unless the application for leave is made not less than six (6) months after the date of that judgment, order, decree, conviction or other proceedings or such shorter period. 40. Counsel thus maintained that judicial review is a special procedure and the Applicant is therefore under an obligation to satisfy the prerequisites laid down for the issuance of the prerogative Order of Mandamus namely; (a) That a prior demand for performance had bcen made: (b) That a reasonable time for compliance with the demand had been given; unless there was outright refusal; and, (c) That the Respondent expressly or by implication refused to pay. 41. It was their submission that the ex-pate applicant has not demonstrated any of the elements aforementioned and is therefore not entitled to the reliefs sought. They maintained that the Applicant did not serve a Certificate of Order against the Government as required under Section 21 (1), (2), (3) and (5) of the Government Proceedings Act and which is equally applicable to County Governments and applies to the payments of debts. 42. In conclusion they submitted that the application is contra-statute and therefore incompetent and urged the court to dismiss it. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8212/eng@2025-11-27 5

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Analysis and Determination: 43. I have carefully considered the substantive Motion, the afidavit in support, the replying afidavit in response thereto as well as the rival submissions and the various authorities cited. Consequently, this court is of the considered opinion that the following issues arise for determination: i. Whether the application herein is time barred. ii. Whether an Order of Mandamus can issue as sought. iii. Whether the Notice of Motion dated 27.09.2024 is merited. iv. Who shall bear the costs of the Application. i. Whether the application herein is time barred; 44. The first issue touches on the jurisdiction of this court to entertain the application as filed. It is the Respondents claim that the application is time barred and contra-statute. 45. It is the respondents’ contention that the application as filed ofiends the provisions of section 9 (2) and (3) of the Law Reform Act as well as Order 53 Rule 1 and 2 of the Civil Procedure Rules, having been filed after 6 months from the date of the decision subject to the Judicial Review proceedings herein which was issued on 19.02.2019. 46. The ex-parte applicant dismissed the said averments and stated that the respondents had misconstrued the provisions of law. They maintained that section 9 (2) and (3) of the Law Reform Act and Order 53 Rules 1 and 2 does not limit the time for filing an application for mandamus. 47. Order 53 Rules 1 and 2 of the Civil Procedure Rules provides as follows: Order 53, rule 1 - Applications for mandamus, prohibition and certiorari to be made only with leave. 1. (1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule. (2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by afidavits verifying the facts relied on. (3) The judge may, in granting leave, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable institution. (4) The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise: Provided that where the circumstances so require, the judge may direct that the application be served for hearing inter partes before grant of leave. Provided further that where the circumstances so require the judge may direct that the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within seven days. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8212/eng@2025-11-27 6

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Order 53, rule 2 - Time for applying for certiorari certain cases. 2. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired. 48. Section 9 (1) and (2) on the other hand provides as follow: (1) Any power to make rules of court to provide for any matters relating to the procedure of civil courts shall include power to make rules of court— (a) prescribing the procedure and the fees payable on documents filed or issued in cases where an order of mandamus, prohibition or certiorari is sought; (b) requiring, except in such cases as may be specified in the rules, that leave shall be obtained before an application is made for any such order; (c) requiring that, where leave is obtained, no relief shall be granted and no ground relied upon, except with the leave of the court, other than the relief and grounds specified when the application for leave was made. (2) Subject to the provisions of subsection (3), rules made under subsection (1) may prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates. 49. From a reading of the above statutory provision, it is evident that the Order 53 Rule 2 on the limitation of time only applies to an application for an order of Certiorari and not mandamus as sought in the instant application. 50. In the case of Joseph Muriithi Nyaga v Embu County Government [2021] eKLR, the Court while addressing its mind to the issue of whether the application for leave to file for orders of mandamus had been filed within the stipulated period held as follows; “ I have clearly looked at the said Order 53 of the CPR and there is nowhere in that Rule it is stated that an application for the order of mandamus must be made within six months of the date of the act complained of. It is only in Order 53 Rule 2 that a specific timeline is given for the application for the order of certiorari.That particular Rule reads as follows:. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made notlater than sixmonths after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired." Further, from the reading of the said section 9(2), the prescription as to the time within which applications for an order of mandamus, prohibition or certiorari ought to be made is in regards to specified proceedings. There are no other rules which have been made in regards to execution against the government taking the same as specific proceedings as contemplated by the said section". https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8212/eng@2025-11-27 7

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51. In view of the foregoing, it is the finding of this court that the application as filed is not time barred nor is it contra-statute as alleged by the respondents. The provisions of Order 53 Rule (2) are not applicable to applications seeking the relief of mandamus as in the present case. Whether an Order of Mandamus can issue as sought; 52. The ex-parte applicant herein is seeking an order of mandamus, seeking to compel the respondents, jointly and severally, to satisfy and settle the decretal sum in their favor in the sum of Kshs. 3,000,000/ =, interest of Kshs. 2,310,000/= and taxed costs of Kshs. 184,303.70/= as issued in Eldoret ELC Case No. 285 of 2013. 53. He averred that the pursuant to the judgment being issued in her favor, he obtained the Certificate of Order and for Costs against the County Government issued on 29.04.2024 and the same was duly served upon the County Attorney on 03.05.2024 but the respondents despite being served have failed, refused and/or neglected to settle the said debt. 54. The respondents on the other hand stated the ex-parte applicant had failed to strictly comply with the provisions under section 21 of the Government Proceedings Act. That no Certificate of Order against the County Government was obtained and if the same was obtained, then it had not been served upon the accounting oficer or the relevant department of the county government. 55. It is well settled that payments of decretal amounts, damages or costs in civil proceedings against the government and county governments is governed by section 21 of the Government Proceedings Act. 56. The said section provides as follows: “ 21(1) Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the government, or against a Government department, or against an oficer of the Government as such, the proper oficer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty – one days from the date of the order or, in case the order provides for the payment of costs and the costs required to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order. Provided that if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant. (2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney- General. (3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Oficer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon. Provided that the Court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8212/eng@2025-11-27 8

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part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein. (4) Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any oficer of the Government as such, of any money or costs. (5) This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party. 57. It therefore follows that before an order of mandamus is issued an ex-parte applicant must demonstrate that he complied with the elaborate procedure provided for under Section 21 of the Government Proceedings Act. The question that therefore follows is whether the ex-parte applicant herein followed the laid-out procedure. 58. I have critically looked at the afidavit in support of the application and grounds therein as well as the court record in totality. It is evident that a Certificate of Order against the County Government of Uasin Gishu was issued on 29.04.2024. Further, the said document bears the receiving stamp of the Ofice of the County Attorney, Uasin Gishu County and was received on 03.05.2024 and duly signed. 59. The ex-parte applicant has further annexed a copy of a Demand Letter from the firm of Marube & Company Advocates dated 16.04.2024 demanding the payment/settlement of the decretal sum together with interests and costs as arising from Eldoret ELC Case No. 285 of 2013. However, I wish to state that the said copy of the demand letter does not contain the receiving stamp of the respondent and it is therefore not clear whether the same was served upon them or not. 60. The averments by the respondents that no Certificate of Order against the County Government was neither obtained nor served are therefore false and aimed at misleading this court. The record shows that the said document was obtained and served as provided in section 21(1) and (2) of the Act as stated above. 61. Further, no challenge has been raised by the respondents as to the nature and form of the Certificate of Order against the County government obtained, served and relied on by the ex-parte applicant as provided under Order 29 of the Civil Procedure Rules and issued by the Deputy Registrar ELC Court. 62. The ex-parte applicant having suficiently demonstrated compliance with the provisions of section 21 of the Government Proceedings Act to the satisfaction of this court, the question that follows is whether an order of mandamus can issue in the circumstances. 63. Mandamus has been defined in Halsbury’s Laws of England 4 Edition Vol. 1 pg. III paragraph 89 thus: “ the order of mandamus is of a 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 appertains to his or their ofice and is in the nature of a public duty. Its purpose is to remedy the defect of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal remedy for enforcing that light; and it may issue in cases https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8212/eng@2025-11-27 9

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where although there is an alternative legal remedy, yet that mode of redress is less comment beneficial and efiectual. 64. 65. Odunga, J. (as he then was) in Permanent Secretary Ofice of the President Ministry of Internal Security & Another ex parte Nassir Mwadhihi (2014) eKLR while dealing with a similar issue held as follows: 33. It therefore follows from the foregoing discourse that the rules applicable to normal execution proceedings by way of committal to civil jail are not necessarily applicable to enforcement of an order of the Court arising from an order of mandamus by way of committal. It must be remembered that an application for an order of mandamus seeking an order compelling the Government to satisfy a decree is a very elaborate procedure. Before the Court issues such an order, there must be proof that the provisions of the Government Proceedings Act have been complied with respect to issuance of certificate of costs and certificate of order against the Government. After the issuance of the aforesaid documents, just like in any application for mandamus, there must be a demand for payment made by or on behalf of the decree holder to the relevant department seeking payment since in an application for an order of mandamus, the law as a general rule requires a demand by the applicant for action and refusal as a prerequisite to the granting of an order, though there are exceptions to the rule. See The District Commissioner Kiambu vs. R and Others Ex Parte Ethan Njau Civil Appeal No. 2 of 1960 [1960] EA 109; R vs The Brecknock and Abergavenny Canal Co. 111 ER and R vs. The Bristol and Exeter Railway Co 114 ER 859. 34. The said elaborate procedure is further meant to give adequate notice to the Government to make arrangement to satisfy the decree. The procedure, in my view is not meant to relieve the Government from meeting its statutory obligations to satisfy decrees and orders of the Court……..” The upshot of the above is that an order of mandamus should issue in the circumstances. The ex-parte applicant duly complied with the elaborate procedure set out under section 21 of the Government Proceedings Act held hereinabove. Whether the Notice of Motion dated 16.08.2024 is merited; 66. In light of the findings in issue No. (ii) above and which is to the efiect that an order of mandamus should issue in the circumstances, it is the finding of this court that the application dated 16.08.2024 is merited. 67. The ex-parte applicant has suficiently proved his claim to the required standard and is therefore entitled to the prayers sought therein. Who shall bear the costs of the Application; 68. The general rule is that costs follow the event unless the court directs otherwise. 69. In this case, having held that the present application merited, it is the finding of this court that the exparte applicant is entitled to costs. Conclusion: 70. In view of the foregoing, it is the finding of this court that the Notice of Motion Application dated 27th September, 2025 is merited and is hereby allowed on the following terms: - https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8212/eng@2025-11-27 10

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71. I. An Order of Mandamus be and is hereby issued, compelling the Respondents, County Secretary County Government of Uasin Gishu and the Chief Oficer Finance, County Government of Uasin Gishu to pay/satisfy the judgement or Dsecree of Kshs. 3,000,000/ = made on 28.02.2019, interest of Kshs. 2,310,000/= together with taxed costs of Kshs. 184,303.70/= in Eldoret ELC No. 285 of 2013. II. Costs of the Application be borne by the Respondents. It is so ordered. DATED, SIGNED AND DELIVERED AT ELDORET THIS 27TH DAY OF NOVEMBER, 2025. HON. C.K. YANO JUDGE Ruling delivered in the virtual presence of: Mr. Marube for Ex-parte Applicant. No appearance for Respondents. Court Assistant – Laban https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8212/eng@2025-11-27 11

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