Prudence Cherono (suing As The Personal Representative of The Estate of The Estate of Nyaosi Omundi Geoffrey) v Chief Officer, Finance, Nairobi City County Government & 2 others

4. On the question of whether I should grant leave to apply for mandamus, the applicant must essentially satisfy the conditions set out in Section 21 of the Government Proceedings Act, to warrant leave of court to apply for mandamus. The section provides as follows: 21. Satisfaction of orders against the Government (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 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 the expiration of twentyone 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 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 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 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. 5. (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 officer 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 arbirtation in which a county government is a party. Payment or settlement of a Decree against the Government including the County Government is predicated on a certificate of order against the Government being issued by the court issuing the decree, which should be served upon the Attorney General (in the case of decrees against the National Government) and County Attorney in the case of decrees against County Governments. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14844/eng@2025-10-22 2

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6. The Certificate of Order against the government can only issue upon expiry of twenty-one (21) days of the date of such judgment or where costs are awarded and taxed later, a separate certificate of order for costs can issue, in addition. 7. There must also be demand for settlement and evidence placed before the court in the application seeking for leave to apply for mandamus. 8. The procedure under the Government proceedings Act enables the County Attorney time to advise the accounting officer to make arrangements to settle decree since there is never any money readily available on the spot, in Government, for settlement of decrees at once, together with costs and interest, in as much as the requirements for settlement of certificate of order is not conditional upon budgetary allocation. 9. In this case, judgment was rendered on 30/1/2025 for Kshs. 3,962,600 plus interest from the date of judgment and on special damages, interest from date of filing suit and costs of the suit. 10. Demand for settlement was made vide letter dated 10th February, 2025, eleven days later, at which point, no certificate of order against the government had been issued, and could not have been legitimately issued before elapse of twenty-one days of the judgment date, seeking for payment of the judgment sum with costs tabulated by Counsel for the applicant, all totaling Kshs.4,196,565. 11. There is annexed a decree and certificate of stated costs as well as certificate of order against the government. The latter is issued on 11th August 2025 and the applicant claims that the certificate of order against the government was served on 15th August 2025. 12. There is no evidence that the costs which are contained in the decree were assessed by any court and if so, on what date. Although the certificate of order against the government was allegedly served upon the respondents on 15th August 2025, which is inclusive of costs, which was after expiry of 21 days from the date when judgment was entered, there is no evidence of when costs were awarded thereby including them into the certificate of order against the government and seeking for settlement of both the damages awarded and costs of the suit. Section 21 of the Government Proceedings Act does allow a later issuance of a certificate of order for costs where costs are awarded but assessed after the certificate of order following judgment is issued. 13. Neither is there evidence that after the 11th August 2025 upon the issuance of the certificate of order against the government, there was any demand made for settlement prior to the filing of these proceedings. Demand was done vide letter of 10th January 2025 prior to the issuance of certificate of order and that demand, as earlier stated, asked for costs and decretal sum, with no certificate of order against the government attached. Furthermore, the 21 days had not expired from the date of judgment on 30th January 2025 hence no valid certificate of order could issue. 14. This failure, on the part of the applicant, to comply with procedural statutory requirements in essence, fiies in the face of section 21 of the Government Proceedings Act. There is evidence that the respondents were served with the certificate of order but there is no evidence that the said certificate was accompanied by a demand for settlement of the decree. 15. I reiterate that there is no evidence that costs of the suit were assessed and awarded to the Plaintiff/ Applicant and it would therefore be erroneous for this court to accept such a decree and certificate of order against the Government as being a good decree duly served upon the Respondents demanding for settlement in compliance with section 21 of the Government Proceedings Act, prior to the institution of these proceedings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14844/eng@2025-10-22 3

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16. The verifying affidavit and statement of facts do not disclose when those costs which were merely tabulated in the demand made before the certificate of order against the government was issued, were assessed by the trial court. 17. For the above reasons, I find that the certificate of order against the Government issued on 11th August 2025 is materially defective and that there is no legitimate demand for settlement of decree that meets the legal requirements under Section 21 of the Government Proceedings Act. 18. I therefore decline to grant leave to the applicant to apply for the order of mandamus to compel settlement of decree as sought and I proceed to strike out the chamber summons dated 19/9/2025 for being premature. 19. The applicant to comply with the laid down procedure before filing a fresh application for consideration on its merit. 20. I make no orders as to costs. 21. This file is therefore closed. The Ruling to be uploaded to the Case Tracking System. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF OCTOBER, 2025 R.E. ABURILI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14844/eng@2025-10-22 4

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