Republic v County Government of Nairobi; Wang’endo & another

1. Pursuant to leave granted by this Court on 10 th July 2025 to file judicial review proceedings, the Ex parte Applicants filed the substantive Notice of Motion dated 16 th July 2025, which is for determination. They seek the following Orders: a) That an Order of Mandamus do issue compelling the Respondent to pay the Ex Parte Applicants the sum of Kshs. 8,049,375.00, with interest at court rates, on account of Judgment dated 17th May 2019 and delivered against the Respondent on 23rd May 2019 in Nairobi Environment and Land Court Case Number 16 of 2003: Jane Nyaguthii Wang'endo and Another v Nairobi City Council and 4 Others, together with costs taxed at kshs. 784,702.47. b) That costs of this application be borne by the Respondent. 2. The application is premised on grounds on its face, the statutory statement of facts and on the 1st Ex parte Applicant’s supporting affidavit. She avers that the 2 nd Ex parte Applicant and herself were the Plaintiffs in Nairobi ELC L JR NO. E012 OF 2025 Page 2 of 16 Judgement

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Environment and Land Court Case Number 16 of 2003, Jane Nyaguthii Wang'endo and Another v Nairobi City Council and 4 others. Further, that they were the successful parties in the matter where vide its judgement dated 17th May 2019, the Court awarded them exemplary damages of kshs.5 million, special damages of kshs.3,049,375/= and costs of the suit which were taxed at kshs.784,702.47, thus they have a Decree in the sum of Kshs.8,049,375.00 and a certificate of costs of Kshs.784,702.47 against the Respondent. 3. She contends that despite the Ex parte Applicants’ having given the Respondent sufficient time and notice to settle the Decretal sum including issuing them, with Notice under Section 21 of the Government Proceedings Act, it has refused to settle the said Decretal amount over six (6) years after judgement was issued. She annexed a copy of Certificate of Order against the Government, dated 23rd October 2024. Response ELC L JR NO. E012 OF 2025 Page 3 of 16 Judgement

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4. The application is opposed by the Respondent vide the replying affidavit of its Chief Officer-Finance, one Asha Abdi. While she admits that the Respondent was served with the Certificate of Order dated 23rd October 2024, she avers that there were no funds to honour the same as the Respondent had already fully committed all funds allocated for payment of legal fees and decretals for the financial year 2024/2025. Further, that the Respondent cannot commit funds unless budgeted for and approved by the Nairobi City County Assembly and in accordance with the Public Finance Management Act. 5. She also claims that the Ex parte Applicants did not follow the procedure as provided at Section 21 of the Government Proceedings Act and contends that the Respondent is desirous of paying all pending Decretals and has constituted a committee on verification which started the first phase of the process on 12th May 2025 and once concluded, it will pay the Ex parte Applicants though once payments are initiated, ELC L JR NO. E012 OF 2025 Page 4 of 16 Judgement

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the same have to be included in a workplan then submitted to the Controller of Budget for approvals and payments. 6. The Notice of Motion was canvassed by way of written submissions. Submissions 7. The Ex Parte Applicants submit that their right to payment of the Decretal sum arising from ELCC No. 16 of 2002 accrued on 5th December 2024, when they served the Respondent with a Government under Certificate Section of 21 Order of the against the Government Proceedings Act. Further, that the said Decree can only be enforced by way of an order of mandamus directed against the Respondent. She insists that pursuant to Section 21(3) of the Government Proceedings Act, a statutory duty is imposed on the Chief Officer Finance concerned to pay the sums specified and does not condition payment to county budgetary allocation in the financial year subsequent to ELC L JR NO. E012 OF 2025 Page 5 of 16 Judgement

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which Government liability accrues, thus lack of budgetary allocation is not a lawful defence. They urge the Court to find that the Respondent has failed in its statutory duty and that they have established a proper case for the issuance of an Order of mandamus. 8. To buttress their averments, the Ex Parte Applicants relied on the following Secretary, decisions: Ministry of Republic State v Permanent for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR; Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR; Republic v County Secretary, Nairobi City County & another; Tom Ojienda & Associates (Ex parte) (Judicial Review E1096 OF 2020) [2023] KEHC 23737 (KLR) (Judicial Review) (13th October 2023) (Judgement) and Republic v Town Clerk of Webuye County Council & another [2014] eKLR. ELC L JR NO. E012 OF 2025 Page 6 of 16 Judgement

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9. The Respondent did not file submissions. Analysis and Determination 10. Having considered the instant Notice of Motion application including the respective affidavits and Ex parte Applicants’ submissions, the only issue for determination is whether the Ex parte Applicants have met the threshold for grant of an order of mandamus compelling the Respondent to settle the decretal sum which includes taxed costs and accrued interest arising from the judgement in Nairobi ELC Case NO. 16 of 2003. 11. It is not disputed that the Ex parte Applicants were the successful party in the aforementioned matter where Judgment was entered on 17th May 2019 awarding them exemplary damages of Kshs.5 million, special damages of Kshs.3,049,375 plus interest at court rates and costs of the suit, which were subsequently taxed at Kshs. 784,702.47. It is also not disputed that a Certificate of Order against the ELC L JR NO. E012 OF 2025 Page 7 of 16 Judgement

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Government dated 23rd October 2024 was issued and served upon the Respondent pursuant to Section 21 of the Government Proceedings Act. The Ex parte Applicants seek Judicial Review Orders of mandamus to compel the Respondent to honour the said Decree. 12. While the Respondent acknowledges having been served with the Certificate of Order against the Government, it contends that the allocated funds for legal fees and decretal payments for the Financial Year 2024/2025 had already been exhausted. It also argues that it cannot make payments without budgetary allocation and approval by the Nairobi City County Assembly in accordance with the Public Finance Management Act. It explains that it is undertaking a verification exercise and that it will pay the decretal sum once the exercise is complete. 13. An Order of Mandamus is well defined by the Court of Appeal in the case of Kenya National Examination ELC L JR NO. E012 OF 2025 Page 8 of 16 Judgement

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Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR as follows: “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 which appertains to his or their office 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 or no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of convenient, beneficial and principles mean that of mandamus compels the redress is less effectual...These an performance order 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 ELC L JR NO. E012 OF 2025 Page 9 of 16 Judgement

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the detriment of a party who has a legal right to expect the duty to be performed.” 14. The nature of mandamus sought herein seeks to compel a County Government to satisfy a Court Decree. To do this, the Ex parte Applicants are mandated to demonstrate compliance with the requirements under Section 21 of the Government Proceedings Act, which provision provides for the procedure of enforcement of monetary decrees against the government. Section 21(1) and (2) and (3) of the said provision specifically states that: “(2)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, department, or or against against an a Government officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after ELC L JR NO. E012 OF 2025 Page 10 of 16 Judgement

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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 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 AttorneyGeneral. (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 Officer 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 ELC L JR NO. E012 OF 2025 Page 11 of 16 Judgement

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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 certificate has not been issued may order any such direction to be inserted therein.” 15. In the case of Republic v Permanent Secretary Office of the President Ministry of Internal Security & Another exparte Nassir Mwandihi [2014] eKLR, Odunga, J. (as he then was), held as follows: “...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 Act have of been the Government complied with Proceedings in 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 ELC L JR NO. E012 OF 2025 Page 12 of 16 mandamus, there must Judgement be a

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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...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, Government is not from meant meeting to its relieve the statutory obligations to satisfy decrees and orders of the Court.” 16. While the Respondent’s defence is anchored on alleged exhaustion of its budget, the Court has in a similar matter, dismissed the contention as an excuse. In Republic v Principal Secretary, Ministry of Environment and Natural Resources & another; Munyao & another (Ex parte Applicants) [2026] KEHC 1263 (KLR), it stated that: ELC L JR NO. E012 OF 2025 Page 13 of 16 Judgement was

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“Mandamus does not issue on account of availability of funds. It is based on a decree of the court which is pending settlement and there being no sign on the part of the respondent settling the same. Mandamus compels performance of a public or statutory duty and that duty in this case is imposed by section 21 of the Government Proceedings Act on the accounting officer.” 17. In this instance, the Ex parte Applicants have demonstrated that they have a Decree against the County Government of Nairobi, which fact is not denied. The Ex parte Applicants have also demonstrated that they have complied with the provisions stipulated within the Government Proceedings Act in respect to enforcement of a Decree against a Government Institution. Insofar as the Respondent has proferred reasons for failing to settle the decretal sum, I opine that these reasons are not plausible. ELC L JR NO. E012 OF 2025 Page 14 of 16 Judgement

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18. Based on the facts as presented while relying on the legal provisions cited and associating myself with the decisions quoted, I find that the Ex parte Applicants have proved their claim for an Order of Mandamus as against the Respondent. 19. In the foregoing, I find the instant Notice of Motion application merited and will allow it in the following terms: i. That an Order of Mandamus be and is hereby issued compelling the Respondent to pay the Ex Parte Applicants the sum of Kshs.8,049,375.00, with interest at court rates, on account of Judgment dated 17th May 2019 and delivered against the Respondent on 23rd May 2019 in Nairobi Environment and Land Court Case Number 16 of 2003: Jane Nyaguthii Wang'endo and Another v Nairobi City Council and 4 Others, together with costs taxed at kshs.784,702.47 within ninety (90) days from the date hereof. ii. That costs of this application be borne by the Respondent. ELC L JR NO. E012 OF 2025 Page 15 of 16 Judgement

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DATED SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Gakungu for Applicant Ms Makutwa for Respondent Court Assistant: Joan ELC L JR NO. E012 OF 2025 Page 16 of 16 Judgement

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