Republic v Chief Officer, Mobility and Ict Infrastructure Nairobi County & 1 other

notwithstanding indulgence granted and assurances of payment made, the respondents have failed, neglected and or refused to settle the outstanding amount. 3. The ex parte applicant avers that it has complied with all the requirements for the making of an order of mandamus, including obtaining a certificate of order against the County Government, which was served upon the respondents, on 28th July, 2025. It is submitted that the application meets the legal threshold for mandamus, under section 21 of the Government Proceedings Act, Cap. 40, Laws of Kenya. 4. The respondents have not filed any substantive opposition to the application. 5. I have considered the application as filed and argued. The main issue for determination is whether the orders sought are merited. 6. The Government Proceedings Act sets out a special procedure for suits involving the Government. Under section 21 of the Act, once a judgement is entered against the Government, the successful party is required to obtain a certificate of order against the Government, and to serve it upon the relevant accounting officer for payment. Notably, the law does not permit the usual methods of execution, such as attachment of property or seizure of assets. This position is not accidental, as it refiects a deliberate policy choice to protect public resources, and ensure that essential Government functions are not disrupted. 7. In such cases, as this one, the proper procedure is to institute separate proceedings for judicial review, by way of the order of mandamus, to compel payment, since there is no other remedy available to the decree-holder. In Republic vs. Attorney General & Another Ex parte James Alfred Koros (2013) eKLR, the court stated that where a judgement has been obtained against the Government, and the Government fails to pay the decretal sum, an aggrieved party is entitled to seek an order of mandamus, to compel the accounting officer to pay. The government cannot evade its legal obligations under the guise of internal financial constraints. 8. In Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic [1997] KECA 58 (KLR), it was said, with respect to the relief of mandamus, that: “ The order of mandamus is of 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 legal remedy, yet that mode of redress is less convenient, beneficial and effectual.” 9. Section 21(4) of the Government Proceedings Act expressly prohibits execution against the Government, thus leaving the ex parte applicant with no other appropriate remedy, except mandamus. It was stated, in R(Regina) vs. Dudsheath, ex parte Meredith [1950] 2 ALL ER 741, that: “ It is important to remember that “mandamus” is neither a writ of course nor a writ of right, but that it will be granted if the duty is in the nature of a public duty, and specially affects the rights of an individual, provided there is no more appropriate remedy. This court has always refused to issue a mandamus if there is another remedy open to the party seeking it. This is one of the reasons, no doubt, why, where there is a visitor of a corporate body, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11191/eng@2026-07-24 2

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court will not interfere in a matter within the province of the visitor, and especially this is so in matters relating to educational bodies such as colleges.” 10. Similarly, in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, the court stated: “ An order of mandamus is a command issued by the High Court to compel the performance of a public duty which is imposed by statute, where the person or body has failed to perform that duty. Once a judgement is entered against the Government and a certificate or order is issued, the obligation to pay becomes a statutory duty.” 11. In Muciimi Mbaka & Co. Advocates vs. Town Clerk, City Council of Nairobi (2012) eKLR, the mandamus order was explained in the following terms: “ An order of mandamus issued to compel performance of a public duty or a duty imposed by statute where there has been failure to perform the said duty to the detriment of an aggrieved party. A local authority has a legal obligation and a public duty to satisfy decrees issued against it and the person entrusted with this task is the Clerk to the Local Authority who according to section 129(1) of the Local Government Act is the Chief Executive and Administrative Officer in-charge of coordinating the operations of a Local Authority … section 263A of the Local Government Act requires the Clerk of a Local Authority to pay without delay sums awarded in a judgement or order to the person entitled out of the revenue of the Local Authority. As the Respondent has failed or refused to pay the Applicant the monies decreed. it is evident that he is in blatant breach of the express duty imposed on him by statute to satisfy decrees issued against the City Council of Nairobi out of the revenue generated by the Council. I do not see any reason why the respondent should not be compelled to pay the Applicant without delay, the decretal sums due out of the revenue of the City Council of Nairobi.’’ 12. It is clear that the mandamus is a compelling order, directed at a public body, to fulfil its statutory duties. In this case, I find that the ex parte applicant has satisfied the conditions for grant of the order of mandamus, since there is no other alternative remedy. The decree and certificate of order against the Government were obtained, and served upon the respondents, but the decretal amount, of Kshs. 168,516,186.00, remains unsettled. 13. To this end, I shall allow, as I hereby do, the motion, dated 24th March 2026, and order as follows: a. An order of mandamus be and is hereby issued, compelling the respondents to satisfy the outstanding sum of Kshs. 168,516,186.00, as per the certificate of Order against the Government, dated 30th October, 2025; b. In default of compliance, the applicant shall be at liberty to move the court for consequential orders against the respondents; and c. The ex parte applicant is awarded costs of this application, assessed at Kshs. 50,000.00, to be included in the mandamus decree, to be issued hereafter. DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 24TH DAY OF JULY 2026. W MUSYOKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11191/eng@2026-07-24 3

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Mr. Abdirahman, Court Assistant. Advocates Mr. Deya, instructed by Coulson Harney LLP, Advocates for the ex parte applicant. Mr. Masaku, instructed by the Nairobi City County Attorney, for the respondents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11191/eng@2026-07-24 4

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