Eno Associate Advocates v Nairobi City County

represent it in HCC No. 910 of 1997 (Mohan Galot vs City Council of Nairobi) which the Applicant states that he duly prosecuted but now the Respondent has failed to settle the Applicant’s legal fees. As a result the Applicant led and Advocate-Client Bill of Costs dated 23/03/2022. 3. That following the taxation of the Advocate-Client Bill of Costs on 7/07/2022 and 22/08/2022 a Certicate of Taxation was issued. The Applicant served the Respondent with a copy of the Certicate of Taxation on 12th April 2024. 4. It the Applicant’s contention that the Respondent failed to pay the costs, necessitating the Applicant to seek orders for the adoption of the Bill a Judgment decree of the Court. Thus the Bill of costs in the sum of Kshs. 1,341,137.66 together with interest at the rate of 14% per annum eective 6th May 2022 until payment in full was adopted as Judgment and decree of the Court Decree on 4/04/2024 5. Due to the failure by the Respondent to settle the said decretal sum, the Applicant has moved this Court for an order of mandamus to compel the Respondent to settle the decretal sum and costs. 6. The Court of Appeal discussed the purview and nature of an order of an order of mandamus in the case of Republic Vs. Kenya National Examination Council Ex parte Githinji and Others CA 234/1996 when it said: “ 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 specied which appertains to his or their oce 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 specic legal right and no specic legal remedy for enforcing that right and it may issue in cases where although there is alternative legal remedy, yet that mode of redress is less convenient, benecial and eectual.” 7. The Respondent opposed the Application and led a Replying Adavit sworn on their behalf by W.S Ogolla the Respondent’s Ag County Solicitor and dated 2/10/2022. In the Adavit the Ag County Solicitor deposes that at no time has the Respondent refused and or neglected to settle the decretal sum of Kesh Kshs. 1,341,137.66. 8. It was deponed that the delay in remitting the decretal sum is not intentional but is due to the delays in getting the funds from National Government. That the National Government has not provided adequate funds for the County Government to be able to settle its outstanding decrees, including the Applicant’s claim. 9. The Respondent stated that the County operates on a strict budget in line with Section 125 of the Public Finance Management Regulations Act 2012 and the budgets run from 1st July of the current calendar year and end on 30th June of the following calendar year and that the liability or expenditure incurred against the Nairobi County Government can only be defrayed from monies provided to it by the National Government. Thus the Respondent cannot pay the Applicant funds not allocated and approved by the County Assembly as provided under Section 125 of the Public Finance Management Act, 2021. Thus the Respondent sought more time since the nancial year is up and running and that the Applicant’s claim will be factored into the next nancial year’s budget and paid out as shall be approved by the County Assembly. Further that it is the interest of justice that the Court allows for budgeting allocation and approval of the amounts decreed through the procedures provided for under the County Government Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18686/eng@2025-02-26 2

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10. The Respondent therefore contended that the failure to satisfy the decree was not intentional but was due to factors that touch on budgeting processes that are cogent upon the nancial year of the County Government. That these are factors beyond the control of the Respondent hence it cannot be said that he has refused/neglected to perform his legal/statutory duty in order to warrant the issuance of the orders of mandamus. 11. The Respondent urged the Court to dismiss the Ex parte Applicant’s claim with costs to the Respondent. 12. The Application was canvassed by written submissions and the parties were directed to le their submissions on 24/10/2024 when they appeared in Court virtually although the Respondent did not attend Court. Determination 13. I have considered the pleadings led and the Ex parte Applicant’s submissions dated 5/11/2024 plus the issues raised in this Application. 14. Section 21(1) of the Government Proceedings Act provides: “ 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 ocer of the Government as such, the proper ocer 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 require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certicate in the prescribed form containing particulars of the order: Provided that, if the Court so directs, a separate certicate shall be issued with respect to the costs (if any) ordered to be paid to the Applicant.” 15. Section 21 (3) of the said Act on the other hand provides: “ If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certicate shall state the amount so payable, and the Accounting Ocer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certicate 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 part thereof, shall be suspended, and if the certicate has not been issued may order any such direction to be inserted therein.” 16. According to Subsection 5 of Section 21, this particular provision applies to County Governments as much as it applies to satisfaction of orders against the National Government, of course with such modications as may be necessary. 17. It was contended by the Respondent that by the time they learned about the decree of the Court they were way into the current nancial year and they had not budgeted for the amounts being claimed by https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18686/eng@2025-02-26 3

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the Ex parte Applicant. That they have to await for money to be allocated to the County Government by the National Government. 18. Now, Githua, J in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza [2012] eKLR expressed herself as follows: “ In ordinary circumstances, once a Judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a Judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting ocer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certicate of costs obtained by the successful litigant from the Court issuing the decree which should be served on the Hon Attorney General. The certicate of order against the Government should be issued by the Court after expiration of 21 days after entry of Judgment. Once the certicate of order against the Government is served on the Hon Attorney General, section 21(3) imposes a statutory duty on the accounting ocer concerned to pay the sums specied in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the nancial year subsequent to which Government liability accrues.” [Emphasis mine]. 19. I fully associate myself to the views expressed by Justice Githua in the above decision and I thus hold the view that settlement of decretal sum by the Government whether National or County does not necessarily depend on the availability of funds. This position was appreciated by Justice Odunga (as he then was) in the case of Wachira Nderitu, Ngugi & Co. Advocates vs. The Town Clerk, City Council of Nairobi Miscellaneous Application No. 354 of 2012 in which he pronounced himself as follows: “ I have however considered the other issues raised by the Respondent with respect to its debt portfolio as against its nancial resources. It is neither in the interest of this Court nor that of the Ex parte Applicant that the Respondent should be brought to its knees. The Court appreciates and it is a matter of judicial notice that most of the local authorities are reeling under the weight of the debts accrued by their predecessors and that they are trying to nd their footing in the current governmental set up. Accordingly I am satised based on the material on record that the Respondent ought to be given some breathing space to arrange its nances and settle the sum due herein.” 20. In my view a party facing nancial constraints is at liberty to move the Court for appropriate orders which would enable it to settle its obligations while staying aoat. That however, is not a reason for one to evade its responsibility to settle such obligations. In other words nancial diculty is only a https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18686/eng@2025-02-26 4

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consideration when it comes to determining the mode of settlement of a decree but is not a basis for declining to compel the Respondent to settle a sum decreed by the Court to be due from it. 21. The Respondent has not produced before the Court any documentation to show that they were not able to pay the decreed amount due to nancial constraints and a plan to indicate when or in which nancial year they would then pay the decretal sum. The Respondent may benet from the Court if he approached Court with a proposal on when they will pay the decretal sum following the Court Judgment but he chose to gloss over a serious issue involving an order of the Court. It is not enough to simply throw up your hands and say “The County has no money!” because you enjoyed the services knowing you will pay for them at some point. 22. The eect of grant of an order of mandamus was considered in extenso in in Shah vs. Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543 where Goudie, J expressed himself, inter alia, as follows: “ Mandamus is essentially English in its origin and development and it is therefore logical that the Court should look for an English denition. Mandamus is a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specic means of compelling its performance, especially when the obligation arises out of the ocial status of the Respondent. Thus it is used to compel public ocers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benet of an individual. Mandamus is neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially aects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do or not to do something; the duty itself being of an imperative nature … In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fullment of which some other person has an interest the Court has jurisdiction to grant mandamus to compel the fullment … The foregoing may also be thought to be much in point in relation to the Applicant’s unsatised Judgement which has been rendered valueless by the refusal of the Treasury Ocer of Accounts to perform his statutory duty under section 20(3) of the Government Proceedings Act. It is perhaps hardly necessary to add that the Applicant has very much of an interest in the fullment of that duty … Since mandamus originated and was developed under English law it seems reasonable to assume that when the legislature in Uganda applied it to Uganda they intended it to be governed by English law in so far as this was not inconsistent with Uganda law. Uganda, being a sovereign State, the Court is not bound by English law but the Court considers the English decisions must be of strong persuasive weight and aord guidance in matters not covered by Uganda law … English authorities are overwhelmingly to the eect that no order can be made against the State as such or against a servant of the State when he is acting “simply in his capacity of servant.” There are no doubt cases where servants of the Crown have been constituted by Statute agents to do particular acts, and in these cases a mandamus would lie against them as individuals designated to do those acts. Therefore, where government ocials have been constituted agents for carrying out particular duties in relation to subjects, whether by royal charter, statute, or common law, so that they are under a legal obligation towards those subjects, an order of mandamus will lie for the enforcement of the duties … With regard to the question whether mandamus will lie, that case falls within the class of cases when ocials have a public duty to perform, and having refused to perform it, mandamus will lie on the Application of a person interested to compel them to do so. It is https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18686/eng@2025-02-26 5

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no doubt dicult to draw the line, and some of the cases are not easy to reconcile … It seems to be an illogical argument that the Government Accounting Ocer cannot be compelled to carry out a statutory duty specically imposed by Parliament out of funds which Parliament itself has said in section 29(1) of the Government Proceedings Act shall be provided for the purpose. There is nothing in the said Act itself to suggest that this duty is owed solely to the Government …. Whereas mandamus may be refused where there is another appropriate remedy, there is no discretion to withhold mandamus if no other remedy remains. When there is no specic remedy, the Court will grant a mandamus that justice may be done. The construction of that sentence is this: where there is no specic remedy and by reason of the want of specic remedy justice cannot be done unless a mandamus is to go, then mandamus will go… In the present case it is conceded that if mandamus was refused, there was no other legal remedy open to the Applicant. It was also admitted that there were no alternative instructions as to the manner in which, if at all, the Government proposed to satisfy the Applicant’s decree. It is sucient for the duty to be owed to the public at large. The prosecutor of the writ of mandamus must be clothed with a clear legal right to something which is properly the subject of the writ, or a legal right by virtue of an Act of Parliament… In the Court’s view the granting of mandamus against the Government would not be to give any relief against the Government which could not have been obtained in proceedings against the Government contrary to section 15(2) of the Government Proceedings Act. What the Applicant is seeking is not relief against the Government but to compel a Government ocial to do what the Government, through Parliament, has directed him to do. Likewise there is nothing in section 20(4) of the Act to prevent the making of such order. The subsection commences with the proviso “save as is provided in this section”. The relief sought arises out of subsection (3), and is not “execution or attachment or process in the nature thereof”. It is not sought to make any person “individually liable for any order for any payment” but merely to oblige a Government ocer to pay, out of the funds provided by Parliament, a debt held to be due by the High Court, in accordance with a duty cast upon him by Parliament. The fact that the Treasury Ocer of Accounts is not distinct from the State of which he is a servant does not necessarily mean that he cannot owe a duty to a subject as well as to the Government which he serves. Whereas it is true that he represents the Government, it does not follow that his duty is therefore conned to his Government employer. In mandamus cases it is recognised that when statutory duty is cast upon a Crown servant in his ocial capacity and the duty is owed not to the Crown but to the public any person having a sucient legal interest in the performance of the duty may apply to the Courts for an order of mandamus to enforce it. Where a duty has been directly imposed by Statute for the benet of the subject upon a Crown servant as persona designata, and the duty is to be wholly discharged by him in his ocial capacity, as distinct from his capacity as an adviser to or an instrument of the Crown, the Courts have shown readiness to grant Applications for mandamus by persons who have a direct and substantial interest in securing the performance of the duty. It would be going too far to say that whenever a statutory duty is directly cast upon a Crown servant that duty is potentially enforceable by mandamus on the Application of a member of the public for the context may indicate that the servant is to act purely as an adviser to or agent of the Crown, but the situations in which mandamus will not lie for this reason alone are comparatively few…Mandamus does not lie against a public ocer as a matter of course. The Courts are reluctant to direct a writ of mandamus against executive ocers of a government unless some specic act or thing which the law requires to be done has been omitted. Courts should proceed with extreme caution for the granting of the writ which would result in the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18686/eng@2025-02-26 6

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interference by the judicial department with the management of the executive department of the government. The Courts will not intervene to compel an action by an executive ocer unless his duty to act is clearly established and plainly dened and the obligation to act is peremptory…On any reasonable interpretation of the duty of the Treasury Ocer of Accounts under section 20(3) of the Act it cannot be argued that his duty is merely advisory, he is detailed as persona designate to act for the benet of the subject rather than a mere agent of Government, his duty is clearly established and plainly dened, and the obligation to act is peremptory. It may be that they are answerable to the Crown but they are answerable to the subject…The Court should take into account a wide variety of circumstances, including the exigency which calls for the exercise of its discretion, the consequences of granting it, and the nature and extent of the wrong or injury which could follow a refusal and it may be granted or refused depending on whether or not it promotes substantial justice… The issue of discretion depends largely on whether or not one should, or indeed can, look behind the Judgement giving rise to the Applicant’s decree. Therefore an order of mandamus will issue as prayed with costs.” [Emphasis added]. 23. In High Court Judicial Review Miscellaneous Application No. 44 of 2012 between the Republic vs. The Attorney General & Another Ex parte James Alfred Koroso, Justice Odunga (as he then was) stated as follows: “ … in the present case the Ex parte Applicant has no other option of realising the fruits of his Judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the Judgement that he has been awarded is realised. Unless something is done he will forever be left baby sitting his barren decree. This state of aairs cannot be allowed to prevail under our current Constitutional dispensation in light of the provisions of Article 48 of the Constitution which enjoins the State to ensure access to justice for all persons. Access to justice cannot be said to have been ensured when persons in whose favour Judgements have been decreed by Courts of competent jurisdiction cannot enjoy the fruits of their Judgement due to roadblocks placed on their paths by actions or inactions of public ocers. Public oces, it must be remembered are held in trust for the people of Kenya and Public Ocers must carry out their duties for the benet of the people of the Republic of Kenya. To deny a citizen his/her lawful rights which have been decreed by a Court of competent jurisdiction is, in my view, unacceptable in a democratic society. Public ocers must remember that under Article 129 of the Constitution executive authority derives from the people of Kenya and is to be exercised in accordance with the Constitution in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benet…The institution of judicial review proceedings in the nature of mandamus cannot be equated with execution proceedings. In seeking an order for mandamus the Applicant is seeking, not relief against the Government, but to compel a Government ocial to do what the Government, through Parliament, has directed him to do. The relief sought is not “execution or attachment or process in the nature thereof”. It is not sought to make any person “individually liable for any order for any payment” but merely to oblige a Government ocer to pay, out of the funds provided by Parliament, a debt held to be due by the High Court, in accordance with a duty cast upon him by Parliament. The fact that the Accounting Ocer is not distinct from the State of which he is a servant does not necessarily mean that he cannot owe a duty to a subject as well as to the Government which he serves. Whereas it is true that he represents the Government, it does not follow that his duty is therefore conned to his Government employer. In mandamus cases it is recognised that when statutory duty is cast upon a Public Ocer in his https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18686/eng@2025-02-26 7

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ocial capacity and the duty is owed not to the State but to the public any person having a sucient legal interest in the performance of the duty may apply to the Courts for an order of mandamus to enforce it. In other words, mandamus is a remedy through which a public ocer is compelled to do a duty imposed upon him by the law. It is in fact the State, the Republic, on whose behalf he undertakes his duties, that is compelling him, a servant, to do what he is under a duty, obliged to perform. Where therefore a public ocer declines to perform the duty after the issuance of an order of mandamus, his/her action amounts to insubordination and contempt of Court hence an action may perfectly be commenced to have him cited for such. Such contempt proceedings are no longer execution proceedings but are meant to show the Court’s displeasure at the failure by a servant of the state to comply with the directive of the Court given at the instance of the Republic, the employer of the concerned public ocer and to uphold the dignity and authority of the Court.” 24. The Court of Appeal in the case of Republic vs. Kenya National Examinations Council ex parte Gathengi & 8 Others Civil Appeal No 234 of 1996, the Court of Appeal cited, with approval, Halsbury’s Law of England, 4th Edn. Vol. 7 p. 111 para 89 set out the circumstances under which judicial review order of mandamus are issued thus: “ 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 specied which appertains to his or their oce 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 specic legal right and no specic legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, benecial and eectual."...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.” 25. In the instant case the Applicant herein has moved this Court to compel the satisfaction of a Judgement already decreed in its favour by a competent Court of law. Whereas this Court appreciates that there are circumstances such as the amount involved and the period that is required in processing payment that may lead to the delay in eecting payment, such grounds can only be used as a basis to seek indulgence to settle the same but those are not recognised grounds for declining to grant an order of mandamus. If the Court were to decline to grant mandamus on that basis the person who is entitled to payment may be left without an eective remedy despite holding a decree. Accordingly I am not satised that the County Government’s failure to budget or the delay in disbursement of funds from the National Treasury to the County Government is a ground for declining to grant the order sought herein. After all just like the National Government, it is a matter of judicial notice that the County Governments do undertake supplementary budgets to factor in unanticipated payments such as this one. The nancial year under review there were at least two and at most three supplementary budgets done in Counties. 26. It is therefore clear that in an Application for an order of mandamus the Court ordinarily does not compel the Respondent to act in a particular manner for example by directing that the Respondents pays the sum due within a specic period unless such period is prescribed. Where however the order is not complied with after the Respondent’s attention has been drawn to the order of mandamus and subject to the relevant procedural law, contempt orders may be issued. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18686/eng@2025-02-26 8

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27. Majanja J (as he then was) adopted the following position which I do associate myself with in Republic vs. Town Clerk of Webuye County Council & Another HCCC 448 of 2006 that: “ ... a decree holder’s right to enjoy fruits of his Judgment must not be thwarted. When faced with such a scenario the Court should adopt an interpretation that favours enforcement and as far as possible secures accrued rights. My reasoning is underpinned by the values of the Constitution particularized in Article 10, the obligation of the Court to do justice to the parties and to do so without delay under Article 159 (2) (a) & (b) and the Applicant’s right of access to justice protected under Article 48 of the Constitution.” 28. From the foregoing I do take the view that the reasons advanced by the Respondent for the failure to satisfy the decree are imsy excuses meant to deny the Applicant the fruits of its Judgement and I have no reason to decline to grant the orders sought herein. 29. Not wanting to belabor the point about budget but I am aware that since the coming into being of devolved units the County Governments have been ooded with many legal suits. It is therefore a given that they must of necessity budget for provision of legal services which they must pay for. Further like any other Government, for Nairobi County to have instructed a legal Counsel it means the person or law rm was procured. For a procurement to happen it must be in tandem with the budget. Therefore the excuse by the Ag. Solicitor that the nancial year could not carry the expense of the legal Counsel is a lame excuse with no legal leg to stand on. Disposal Orders 30. Given the foregoing premises I hereby issue an order of mandamus against the Respondent compelling him to pay the Applicant the sum of Kshs. 1,341,137.66 with interest thereon at the rate of 14% per annum from the date of the Judgment till payment in full and costs of the Application. Orders Accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 26TH DAY OF FEBRUARY 2025 VIA MICROSOFT TEAMS. ………………………… MOGENI J JUDGE In the presence of: Ms. Kemunto for Ex parte Applicant Ms. Kemunto holding brief for Mr. Cheruiyot for the Respondent Melita - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18686/eng@2025-02-26 9

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