Tecjuz Investment Limited v County Government of Kiambu

b. That the Respondent be condemned to pay the costs of the application. 2. The Application is based on the grounds as set out on its face and the Supporting affidavit dated 23rd June, 2025, wherein the Applicant has averred that the Respondent contracted it to provide services for the refurbishment and completion works at Athi Dispensary in Kiambu County. The Applicant approved the works of the Applicant and consequently the sum of Kshs. 3,418,164 was paid less Kshs. 379,796/= which was supposed to be paid within 6 months after completion as per the contract. The Applicant holds that upon the non- payment of the balance by the Respondent, it filed a Civil suit no E370 of 2021 to pursue compensation whereby it obtained a Judgment in its favour for the sum of Kshs. 379,796/= plus costs and interest of the suit. That the costs were then taxed at a sum of Kshs. 114,600/= and interest in the sum of Kshs. 305,733/= which made the decretal sum payable to be Kshs. 800,129/=. 3. According to the Applicant, it has taken all the required legal steps including serving the Certificate of Order against the Government, a Demand notice, and Notice of intention to institute Judicial Review proceedings but the Respondent has failed to pay the said sum which prompted the filing of this application seeking to have it compelled to pay the same by way of an order of Mandamus. 4. The Application was served upon the Respondent on 24th June 2025 as confirmed by the Affidavit of Service sworn by Teddy Tumaini Kenga, a Licenced Court Process Server on 24th June, 2025. The Respondent’s counsel has not attended despite having been served with the said application. I have also checked Court Tracking System (CTS) and noted that the Respondent has only filed a Notice of Appointment but no response has been filed as at 2nd October, 2025 and even at the time of writing this ruling. Be that as it may, this Court has a duty of considering the application to establish if the same has met the required legal threshold and or its merit. Determination 5. I have carefully read through the Notice of Motion application dated 23rd June, 2025 alongside the grounds upon which the prayers therein are premised both on its face and the Supporting Affidavit by Justus Mulei Kituku sworn on even date to determine whether or not the same is meritable dispute being unchallenged. To establish this, the following issues must be determined:a. Whether the Respondent is statutorily bound to manage the Athi Dispensary in Kiambu County? b. Whether the Respondent is mandated to compensate the Applicant. c. Whether the Applicant is entitled to the order of Mandamus. 6. A County Government is a body co-operate with power to sue and be sued. It can be sued and held liable for breaches of statutory duties/obligations for failing to fulfil contractual obligations, contracts and even torts committed by its officers while performing their duties. This is however subject to statutory limitation with regard to timelines required for filing of lawsuit as provided for under the Limitation of Actions Act and in compliance with the provision of the Government Proceedings Act. This has not been controverted by the Respondent who has failed to file and serve a response to the application. 7. It is trite law that any execution against the government should be done through judicial review proceedings, which is the procedure correctly followed by the Exparte Applicant as premised under Order 53 of the Civil Procedure Rules. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17102/eng@2025-10-31 2

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8. In the instant case, the Respondent herein is the County Government of Kiambu and has been sued on behalf of its Department of Health Services whereby it is claimed that it contracted the Applicant, Tecjuz Investments Ltd to provide services for the refurbishment and completion works at Athi Dispensary in Kiambu County. That the Respondent approved the Applicant’s works and paid it a sum of Kshs.3,418, 164.00 less Kshs.379,796.00 which was to be paid within six (6) months after the completion of the works but remains unpaid todate. 9. It is also not in dispute that the Respondent is charged with the duty or obligation to pay the Applicant the sum of Kshs.379,796.00 being the debt owed and arising from the contractual obligations it had with the Applicant. 10. According to the Applicant, when the Respondent failed to pay the said balance, it filed a suit at Gatundu CMCC No.E0370 of 2021, Tecjuz Investment Limited –vs- County Government of Kiambu in pursuant of compensation. That on 29th October, 2023, the Applicant obtained judgment in its favour as against the Respondent for the said sum of Khss.379,796.00 together with costs which were fixed at Kshs.11,600.—and interest in the sum of Kshs.305,733.00, hence the total decree sum payable is Kshs.800,129.00. 11. The Applicant then notified the Attorney General of the said Judgment and demanded compensation. That on 21st November, 2024 a Bill of Costs filed and served upon the Respondent was taxed at Kshs.114,600/=. The Applicant went on to obtain a Certificate of Order of Costs against the Government and served the same upon the Respondent. Despite all these moves, the Respondent did not and has not responded to either. Subsequently, the Applicant proceeded to file a Notice of Intention to sue as per the provision under the Government Proceedings Act for recovery of the sum owed and damages, which notice was served upon the Respondent on 4th June, 2025. Again, the Respondent did not and has not responded to the same and or performed its contractual duty to make payment of the sum owing to the Applicant vide a Judgment delivered by the trial court on 29th October, 2024. This is what prompted the filing of the instant application wherein the Appellant is seeking to have the Respondent compelled to honour the Judgment and decree of the trial court. 12. An order of Mandamus is one of the equitable remedies provided for under Article 23(3) of the Constitution of Kenya, 2010 as well as Order 53 of the Civil Procedure Rules. Article 23 (3) of the Constitution provides as follows:“ In any proceedings brought under Article 22, a court may grant appropriate relief, including — 13. a. a declaration of rights; b. an injunction; c. a conservatory order; d. a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; (e) an order for compensation; and (f) an order of judicial review. Order 53 of the Civil Procedure Rules states that:[Order 53, rule 1.] Applications for mandamus, prohibition and certiorari to be made only with leave. 1. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17102/eng@2025-10-31 3

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(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 affidavits verifying the facts relied on. 14. The order of Mandamus compels a public body or official to perform a specific public duty that they are legally obligated to do. And for it to issue, a party seeking its issuance must demonstrate a specific legal right and lack of any other effective and Government legal remedy. 15. In the case of Republic –vs- Principal Secretary, Ministry of Internal Security & Another Exparte Schon Noorani & Anotrher [2018]eKLR, Hon. Mativo, J. (as he then was) held as follows:“ Mandamus is an equitable remedy that serves to compel a public authority to perform its public duty and it is then a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. –vs- Canada (Attorney General)[23] S and was also discussed in Dragaon –vs- (Canada (Minister of Citizenship and Immigration) [24]. The eight factors that must be present for the writ to issue are:a. There must be a public legal duty to it. b. The duty must be owed to the Applicants c. There must be a clear right to the performance of that duty, meaning that; i. The Applicant must have satisfied all conditions precedent; and, ii. There must have been a prior demand for performance ; iii. A reasonable time to comply with the demand unless there was a right refusal; and, iv. An express refusal or an implied refusal though .. duty. d. No other adequate remedy is available to the Applicant e. The order sought must be of some practical issue or effect. f. There is no equitable bar to the relief sought. g. On a balance of convenience, mandamus should lie. 16. In the instant case, he Applicant has demonstrated with evidence that there is a public legal duty owed to the Applicant. Also, the Applicant has demonstrated that it made prior demand for payment within reasonable time but no payment has been made in respect of the subject claim by the Respondent. Therefore, the duty to pay the debt owed has arisen in respect of the Respondent herein. 17. And just like the National Government, the County Government is equally protected by the provision of Section 21(4) of the Government Proceedings Act which requires that such application be made after a Certificate of order against the Government be served upon it. In this regard, in the case of Republic https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17102/eng@2025-10-31 4

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–vs- County Government of Vihiga, Exparete Global Exhibitions Incorporated Ltd [2021]eKLR, Musyoka J. stated as follows:“ A party wishing to realize the fruits of a judgment or decree against the government must obtain a certificate of order against the government. The government pays against the certificate of order against it. It is a critical accounting instrument for the purpose of government finances and accounts. The centrality of the certificate of order against government, with respect to enforcement of money decrees against the government, whether at the national or at the county level, has been the subject of pronouncement by the courts.” 18. In the upshot, the court confirms that the Ex parte Applicant has correctly followed the procedure provided for in urging Judicial Review proceedings and complied with the provision under Section 21 of the Government Proceedings Act, hence the Notice of Motion application dated 5th June, 2025 is tenable. The application is thus allowed in the following terms:a. An Order of Mandamus be and is hereby issued against the Respondent compelling the Respondent to honour the decree issued in Gatundu CMCC No. E370 of 2021 between Tecjuz Investment Limited v County Government of Kiambu. b. Costs of this application to be paid by the Respondents. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 31ST DAY OF OCTOBER, 2025. D. O. CHEPKWONY JUDGE In the presence of: M/S Nyabuto counseL for Applicant Mr/ Mararo counsel for the Respondent Court Assistant – Martin/Sakina https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17102/eng@2025-10-31 5

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