Republic v The Inspector General of Police & 1 other

amounts unless expressly compelled by the court, and submits that the application is meritorious, brought without undue delay, and that granting the orders would be just, fair, and equitable.. 3. The 1st and 2nd respondents, the Inspector General of Police and the Attorney General, filed grounds of opposition and written submissions opposing the ex parte applicant’s Application. They argued that the application ofiends section 8 of the Office of the Attorney-General Act (Cap. 6A), sections 4(4) and 21(4) of the Government Proceedings Act (Cap. 40), and Order 29 rule 2(2)(b) of the Civil Procedure Rules, as it is tantamount to granting execution orders against the government, contrary to the law. They contended that the applicant is guilty of selective execution, laches, and failure to exercise due diligence, thus rendering the application misconceived, unsupported by evidence, and a complete abuse of court process. 4. Relying on the decision in Republic v Principal Secretary, Ministry of Internal Security & another Ex Parte Republic v Principal Secretary, Ministry of Internal Security & another Ex Parte Schon Noorani & another & another [2018] eKLR, the Respondents outlined the eight mandatory requirements for granting mandamus, including the existence of a public legal duty owed to the applicant, a clear right to performance, prior demand, refusal or delay, absence of alternative remedies, and equitable bar to relief. They submitted that these conditions were not met, as the orders sought were directed personally against the respondents rather than the appropriate accounting officer in the relevant ministry, contrary to section 8(2) of the Office of the Attorney-General Act and section 21(4) of the Government Proceedings Act, which shield government officers from personal liability for actions done in good faith. 5. Citing Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex Parte Fredrick Manoah Egunza [2012] KEHC1643 (KLR), the Respondents emphasised that government money decrees can only be enforced through mandamus against the relevant accounting officer, as the government is protected from execution or attachment of property. They further argued that the impugned judgment did not award interest thereby making the applicant’s claim for interest an improper attempt to review the judgment without following procedure. They urged the court to find the application fatally defective, incurably bad in law, devoid of merit, and to dismiss it with costs. Issues for Determination 6. I have carefully considered the pleadings filed herein and the parties’ respective submissions. I find that the issues that arise for my determination are: a. Whether an order of mandamus is available to compel the respondents to satisfy a decree issued against the government. b. Whether the applicant has established grounds for the grant of an order of mandamus in the circumstances of this case. Analysis and Determination 1. Mandamus 7. Section 21(4) of the Government Proceedings Act prohibits execution or attachment against the government, making mandamus the only legal avenue for enforcement. This principle is supported by the decisions in Republic v County Secretary, County Government of Meru & 3 others; Kaburu t/ a Mwirigi Kaburu & Co Advocates (Exparte Applicant) [2025] KEELC 4164 (KLR) and Republic v Attorney General & Another ex parte Stephen Wanyee Roki [2016] eKLR, wherein it was held that parties with judgments against the government must seek mandamus to compel the relevant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19372/eng@2025-10-23 2

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accounting officer to settle the decree. In Five Star Agencies Limited & another v National Land Commission & 2 others [2024] KECA 439 the Court of Appeal confirmed that this is the established execution procedure against government entities. 8. In the instant case, the applicant asserts that all the conditions for the granting of an order of mandamus are met, citing Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR, which describes mandamus as a broad remedial order to compel the performance of a public duty when justice would otherwise be defeated. He contends the respondents’ inaction amounts to dereliction of duty under Articles 10 and 47 of the Constitution and urges the court to grant the orders as prayed, including setting a timeline for payment with interest until settlement, to prevent the decree from becoming barren. 9. Section 21(4) of the Government Proceedings Act (Cap. 40) expressly bars execution, attachment, or process against the government for enforcement of money decrees. I find that the only legal remedy available to the Applicant is by way of judicial review orders of mandamus compelling the relevant accounting officer to pay the decretal sum. I therefore find that an order of mandamus is in principle available to enforce the decree herein. 2. Whether Grounds for Mandamus are Established 10. I find that the Applicant demonstrated the following: i. The existence of a valid judgment and decree awarding him Kshs. 2,500,000 in compensation and Kshs. 295,345 in taxed costs. ii. A duly issued Certificate of Order Against the Government dated 14th March 2024. iii. Service of the decree and demand letters upon the respondents. iv. Persistent refusal or neglect by the respondents to settle the decretal sum. 11. I find that the above facts meet the requirements outlined in Republic v Principal Secretary, Ministry of Internal Security & another Ex Parte Schon Noorani & another case (supra) on the existence of a legal duty, demand and refusal, absence of alternative remedy, and the need to prevent failure of justice. 12. On the respondents’ contention that the order should be directed at the accounting officer rather than the Attorney General or Inspector General, the court notes that under Article 156(4)(c) of the Constitution and section 21 of the GPA, the Attorney General is the principal legal adviser and the statutory officer through whom such orders are channelled, while the actual payment duty lies with the relevant accounting officer (Cabinet Secretary/Principal Secretary). Courts have therefore routinely granted mandamus directed at respondents in their official capacity. 13. On the issue of interest payable on the decretal sum, I note that it is true that the judgment of 22nd June 2023 did not award interest. I am of the view that a claim for interest, beyond that decree, would amount to seeking a review, which cannot be achieved through judicial review. I find that the applicant is therefore only entitled to the decretal sum and taxed costs as captured in the Certificate of Order Against the Government. Conclusion 14. Having considered the application, responses, and the law, I am satisfied that the applicant has met the threshold set for the granting of an order of mandamus. I find that the respondents have a statutory duty to satisfy the decree issued in Nyamira High Court Constitutional Petition No. E001 of 2022, and that their refusal to do so amounts to dereliction of duty. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19372/eng@2025-10-23 3

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Orders 15. a. An order of mandamus is hereby issued compelling the Principal Secretary, Ministry of Interior and National Administration, being the relevant accounting officer, to satisfy the decree in Nyamira High Court Constitutional Petition No. E001 of 2022 by paying the applicant the total sum of Kshs. 2,795,335 (comprising Kshs. 2,500,000 compensation and Kshs. 295,345 taxed costs), in compliance with the Certificate of Order Against the Government dated 14th March 2024. b. Payment shall be made within ninety (90) days from the date hereof. c. The prayer for interest is declined, as the original judgment did not provide for the same. d. The respondents shall bear the costs of this application. It is ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA VIA MICROSOFT TEAMS THIS 23RD DAY OF OCTOBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19372/eng@2025-10-23 4

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