High Court 5354 of 2026

The Ex parte Applicant’s Case 3. The ex parte applicant states that she instituted a small claims matter SCCC No. E320 of 2023 at Thika Small Claims Court and on 19t December 2024, the court awarded her damages to the tune of Kshs. 482,125/-. On 24th January 2025, the respondent was served with the decree and certificate of costs as provided by the law. The ex parte applicant states that despite service of the decree, the respondent has declined to satisfy the same hence her prayer for an order of mandamus to compel the respondent to comply. The Respondent’s Case 4. The respondent states that it is not in dispute that a judgment and decree were issued on 19th December 2024 and a Certificate of order against the government was extracted and served upon them. The respondent further states that failure to settle the same has not been deliberate or in disregard of the court orders but is due to budgetary constraints and the statutory financial procedures that govern the county finances under the Public Finance Management Act, 2012. Payment of such decrees must follow due budgetary process including approvals, budgeting and appropriation by the County Assembly, beyond the immediate unilateral control of the respondent. The respondent further states that the said decree had not been budgeted for in the financial year 2024/2025 and can only be budgeted for in the next financial year. 5. The respondent states that they have included the said decretal amount in their budget proposals for the next financial year 2024/2025 and it is anticipated that once the budget is approved and funds are made available, the judgment shall be settled. The respondent argues that an order of mandamus compelling the county government to pay immediately would amount to circumventing the legal financial procedures particularly those entrenched under Articles 201 and 206 of the Constitution and the Public Finance Management Act which require proper authorization and appropriation of public funds. The respondent thus urges the court to grant them a reasonable period to process and settle the decree sum lawfully. 6. Parties put in written submissions. The Ex parte Applicant’s Submissions 7. The ex parte applicant relies on the case of Republic v Kenya National Examination Council ex parte Gathenji & Others (1997) eKLR and submits that an order of mandamus is of a most extensive remedial nature and is in form a command from the High Court directed to any person requiring him to do some particular thing therein specified which pertains to their office. The ex parte applicant submits that she obtained a judgment in her favour, followed by a decree and a certificate of costs duly served upon the respondent. The respondent, a public body acknowledged receipt but failed to satisfy the judgment debt which constitutes a breach of a statutory duty under Section 21 of the Government Proceedings Act. 8. Relying on the case of Republic v Principal Secretary, Ministry of Defence & Another ex parte David Gitau Njau & 9 Others [2018] eKLR, the ex parte applicant argues that courts have held that financial excuses cannot override a public body’s obligation to comply with court orders. The Respondent’s Submissions 9. The respondent refers to the cases of Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR and Republic v Town Clerk Kisumu Municipality ex parte East African https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5354/eng@2026-04-23 2

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Engineering Consultants (2007) EA 441 and submits that mandamus will only issue where there is a legal duty and a clear failure to perform that duty which is not the case herein. 10. The respondent further relies on the cases of Republic v Jomo Kenyatta University of Agriculture and Technology ex parte Elijah Kamau Mwangi Nairobi HC Judicial Review Application No. E001 of 2020 and ELC Misc No. 33 of 2018 and submits that there is no wilful refusal by themselves to settle the disputed decretal sum and the same will duly be settled once it is provided for in the budget. 11. The respondent submits that the decree was not budgeted for in the FY 2024/2025 and only lawful payments approved by the County Assembly may be disbursed, that the debt has been included in the budget proposals for the next financial years and will be settled upon appropriation and that the Chief Finance Officer cannot unilaterally authorize payments outside budgetary allocations. To support their contentions, the respondent relies on the case of Republic v Permanent Secretary, Ministry of State for Provincial Administration & Internal Security [2012] eKLR. The Law 12. The Court of Appeal discussed the nature of the remedy of mandamus in Republic v Kenya National Examinations Council ex parte Githinji & 8 Others [1997] eKLR citing with approval Halsbury’s Laws of England 4th Vol. 7 p. 111 para 89:The order of mandamus is the 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 and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative remedy, yet that mode of redress is less convenient, beneficial and efiectual…”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 had failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. 13. In the instant case, the ex parte applicant has moved this honourable court to compel the respondent satisfy a judgment in terms of costs already decreed in her favour by a competent court of law. The issues therefore that require to be determined are whether the respondent is under a public duty and obligation to satisfy the certificate of costs in favour of the ex parte applicant and if so, whether the ex parte applicant is entitled to the relief it seeks. 14. The procedure required to be followed for payment of damages or costs due from the government in civil proceedings are elaborated in Section 21 of the Government Proceedings Act. It provides: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 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: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5354/eng@2026-04-23 3

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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. 4. 15. 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. Evidently, Section 21(3) above provides that the person responsible for the payment of any damages or costs awarded against the government is the accounting officer of the Ministry or public body concerned, who is the one under a statutory duty to satisfy a judgment made by the court against that ministry or body. This position was explained in Republic v Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) eKLR 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 arty defending a civil suit. Similarly, when 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 officer 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 certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Honourable Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Honourable Attorney General, Section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5354/eng@2026-04-23 4

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in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon. 16. Applying the above procedure to the instant case, the ex parte applicant has annexed a decree and certificate of costs issued on 24th December 2024. The ex parte applicant has further annexed an Affidavit of Service proving service. The said decree and certificate of costs bears the receiving stamp for the County Government of Kiambu dated 24th January 2025. It is however evident that the ex parte applicant has not attached a valid certificate of order against the government thereby failing to comply with the elaborate procedure for applying for mandamus under Section 21 of the Government Proceedings Act. I have noted that the respondent has not opposed the application per se and they have stated that they have not refused to settle the award but need more time to do so since they did not budget for the said decree in the FY 2024/2025. 17. It is my considered view that a court will only issue an order for mandamus if it is shown that the requirements under Section 21 of the Government Proceedings Act have been fulfilled. Thus, since the ex parte applicant has not adhered to the procedure laid out in section 21 of the Act, for failing to attach a certificate of order against the government. 18. As such, this application is premature in my view, and it is hereby struck out with costs to the respondent. 19. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 23RD DAY OF APRIL 2026. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5354/eng@2026-04-23 5

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