Republic v Nairobi County Government & 2 others

and cannot make provision without authority of the County Assembly; it is in public domain that the 1 st respondent owes debts in billions and is dealing with bills on a priority basis; and prays that the court should not issue orders in vain. 4. Directions were taken, on 13th May 2026, for canvassing of the application, by way of written submissions. 5. Only the ex parte applicant has filed written submissions, dated 25th May 2026. It addresses only 1 issue, whether the application has met the threshold for grant of a mandamus order. It is submitted that it has, for the decree and the certificate of order and costs against the government were issued and served, and that once that is done, the mandamus order would be available. Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic [1997] eKLR [1997] KECA 58 (KLR); Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR; Republic vs. County Secretary, Nairobi City County & another ex parte Wachira Nderitu Ngugi & Company Advocates [2016] KEHC 7682 (KLR) and Republic vs. Attorney General & another Ex parte James Alfred Koroso [2013] KEHC 90 (KLR) are cited. 6. The processes, for levying execution of court decrees and orders, as set out in the Civil Procedure Act, Cap. 21, Laws of Kenya, and the Civil Procedure Rules, are not available against the Government. The rationale, for that position, was given in Kisya Investments Ltd vs. Attorney General & another [2005] eKLR [2005] KEHC 3226 (KLR). Proceedings against the Government are governed by the Government Proceedings Act, Cap. 40, Laws of Kenya, in terms of how to initiate them, and what to do after a decree is obtained. The requirement is that, upon a decree or order being obtained against the Government, the party, desiring to have it satisfied or complied with, ought to obtain, from the court, a certificate of order against the Government, which should then be served. 7. The law, on satisfaction of orders and decrees against the Government, is section 21 of the Government Proceedings Act. Section 21(1) requires extraction of the certificate of order against the Government from the court record. Section 21(2) requires service of that certificate on the Attorney General or the County Attorney, whichever the case. Section 21(3) directs the Accounting 2

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Officer, for the Government department concerned, to pay, to the person entitled or to his Advocate, the amount appearing by that certificate. Section 21(4) declares that no execution or attachment, or any other process of that kind, should be issued by the court, for enforcement of payment by the Government of any money or costs decreed or ordered by a court against it. See Republic vs. Permanent Secretary Office of the President Ministry of Internal Security & another Ex-Parte Nassir Mwandihi [2014] eKLR [2014] KEHC 6027 (KLR). 8. The accounting instrument, for the purpose of Government operations, which unlocks payment of money from the Government, in satisfaction of a court order or decree, is the certificate of order against the Government. This document is critical. Without it, the process of payment cannot be unlocked. Any person, desiring to be paid by Government, on account of a decree or order against it, must first obtain the said certificate. That certificate must then be served on the Attorney General; in case the decree or order is against the National Government; or the County Attorney, where the order or decree is against a County Government. The Government should only be expected to settle or satisfy the decree upon being notified of the same, through that certificate being appropriately served, in accordance with the law. See Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR and Five-Star Agencies Ltd & another vs. National Land Commission & 2 others [2024] KECA 439 (KLR). 9. The Mandamus order is available where a statutory or public duty exists, and it issues to enforce that duty. See Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic [1997] eKLR [1997] KECA 58 (KLR). The duty, on the part of the Government, with respect to court orders and decrees, to pay or settle a court decree or order, accrues, not upon the order or decree being passed, but upon the accounting document, known as certificate of order against the Government, being served on the relevant Government official. The mandamus order can only be obtained on the strength of service of the said certificate, for it is upon that service that the duty to act accrues. 10. The question, in this case, then, is, whether the duty to pay or settle the decree herein has accrued. The answer to that question would depend on whether a certificate of order against the 3

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Government was obtained, and if it was, whether it was served on the relevant Government functionary. 11. The ex parte applicant has attached, to the affidavit filed herein in support of the motion, a letter, dated 8 th December 2025, written to the respondents, which forwarded a copy of a further amended decree, dated 21st July 2025, and a further amended certificate of order and costs against the government, dated 22nd July 2025. That letter has a date stamp embossed on its face, indicating receipt of the letter and its attachments, on 8th December 2025, at the Office of the County Attorney, of the Nairobi City County. There is also a copy of the decree itself, signed on 21st July 2025, which has 2 date stamps embossed on its face. One indicates that a copy of the decree was received at the Office of the County Solicitor, of the Nairobi City County, on 24th July 2025, while the other indicates receipt of the decree at the Office of the County Attorney, of the Nairobi City County, on 8th December 2025. There is a copy of the certificate of order and costs against the government, dated 22 nd July 2025, which also bears 2 date stamps on its face. One date stamp was affixed by the Office of the County Solicitor, of the Nairobi City County, on 24 th July 2025, while the other was affixed by the Office of the County Attorney, of the Nairobi City County, on 8th December 2025. 12. The material, the subject of the foregoing paragraph, would be adequate proof that the decree and certificate of order against the government was indeed properly served on the appropriate officers of the 1st respondent. 13. The mandamus order issues to enforce the duty to pay, where that duty has accrued. The failure to serve that certificate is fatal, and evidence of service would lead to grant of the mandamus order. See Evans James Misati vs. County Secretary Chief Officer Ministry of Health County Government of Vihiga Ex Parte: Evans James Misati [2021] KEHC 13532 (KLR) and Republic vs. Principal Secretary Ministry of Interior and Coordination of National Government & another; Wang'ombe (Ex parte) [2024] KEHC 4336 (KLR). The certificate of order against the Government has, in this case, been served, hence the duty to pay has accrued. The mandamus order is available in this case, in the circumstances. It can, as a consequence, issue. 4

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14. The respondents filed grounds of opposition. However, the issues raised in those grounds are irrelevant, to the extent that they cannot provide basis for the court declining to grant the order of mandamus. It was stated, in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR, that the matters of budgetary allocation challenges, parliamentary approval, or heavy indebtedness, and the like, cannot be a condition for grant of the order, once the duty or liability to pay accrues, upon service of the certificate of order against the government. 15. In the end, I hereby find that the application, by way of Motion, dated 19th March 2026, is merited, and I hereby allow it, with costs. Orders accordingly. DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 10TH DAY OF JULY 2026. W MUSYOKA JUDGE Mr. Abdirahman, Court Assistant. Advocates Mr. Khisa, instructed by Khisa & Company, Advocates for the ex parte applicant. Mr. Njoroge, instructed by the Office of the Nairobi City County Attorney, for the respondents. 5

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