'
1. Before court is a motion dated 25 March 2025 expressed to be brought under sections 8 and 9 of the Law Reform Act, cap 26 and Order 53 Rule 3 of the Civil Procedure Rules, 2010. The applicant seeks primarily the order for mandamus for which it has prayed as follows:
“That an Order of Mandamus to issue to compel the County Executive Committee Member, Finance and Economic Planning and/ or the Accounting Officer for County Government of Kilifi to pay to the Exparte Applicant, Al Mahra Industries Limited, the sum of Kenya Shillings Four Hundred and Fifty Nine Thousand Three Hundred and Seventy Six and Thirty Five Cents (Kshs. 459,376.35) being the outstanding costs of the suit as certified as being due and owing from the Respondent to the ex parte applicant Al Mahra Industries Limited arising from the Certificate of Order against the Government issued on 8th May 2024 by the Deputy Registrar of the High Court of Kenya in (Mombasa) constitutional ELC Petition No. 48 of 2019 County Government of Kilifi & Another versus Registrar of Titles Mombasa & others.”
The applicant has also sought for the order for costs.
2. The application is based on a statutory statement dated 10 January 2025 and an affidavit of even date sworn by Mr. Kiarie Kariuki verifying the facts relied upon.
3. Mr. Kariuki has sworn that he is an advocate of this Honourable Court practising as such in the name and style of M/s Kiarie Kariuki, Atieno Obura & Partners Advocates LLP, on record for the ex parte applicant in this application.
4. The applicant, it is sworn, is aggrieved by the respondents’ failure to settle its costs as awarded on 8 May 2024 in Mombasa constitutional Environment and Land Court Petition No. 48 of 2019; County Government of Kilifi & Another versus Registrar of Titles Mombasa & others.
5. It is sworn that by a ruling delivered by the Honourable Mr. Justice Yano on 10 June, 2021 the petitioner''s petition was struck out with costs to the respondents. The applicant was the 16ᵗʰ respondent in the aforesaid petition and was hence entitled to costs.
6. Accordingly, a bill of costs dated 16 June 2023 was filed and a notice of taxation duly served upon the respondents’ advocates. The bill of costs was eventually taxed on 24 April 2024 and, by a ruling delivered by the taxing officer on 8 May 2024, the bill was taxed at Kenya Shillings Four Hundred and Fifty Nine Thousand Three Hundred and Seventy Six and Thirty Five
Cents (Kshs. 459,376.35).
7. The Certificate of Costs dated 8 May 2024 was served upon the respondents on 26 June 2024. Subsequently, the certificate of order against the Government was issued on 28 August 2024 for the sum of Kshs. 459,376.35 being the party and party costs plus interest. The certificate of order against Government was eventually served upon the office of the respondent’s County Attorney on 22 October 2024.
8. Notwithstanding service of the certificate of order against government, the respondents have refused, neglected and failed to settle the applicant''s costs or any part thereof, hence the instant motion.
9. It is the applicant’s position that it is only fair and just that the 2ⁿᵈ or 3ʳᵈ respondents or both of them be ordered or compelled by way of an order of mandamus to carry out their legal obligations under the County Government Act No. 17 of 2012 and pay the party and party costs as certified.
10. The application was not opposed and when it came up for hearing, Mr. Malombo, the learned counsel for the respondents, informed the court that he had not received any instructions from his client to oppose the application.
11. One of the ways through which decrees or orders are enforced is, of course, through execution or attachment. However, the Government is protected from such process of execution or other similar process in enforcement of decrees or orders by section 21 of the Government Proceedings Act, in particular, section 21(3) thereof. That section reads as follows:
21. Satisfaction of orders against the Government
(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:
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) 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.
(5) This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.
12. A County Government is, of course, a “government” in the strict sense of the word but perhaps to discount any doubt of this sort of status of the devolved unit, section 21(5) of the Act makes it clear that a county Government enjoys the same protection from execution and attachment as the National Government.
13. I have consistently held in applications such as the one before court that, in the face of this protection, the only available route open to the applicant is to compel the accounting officer the Government or the concerned Government department to perform his statutory duty under section 21(3) of the Act and pay what has been decreed as due and owing to the applicant. In other words, only the order of mandamus would be the appropriate order under the circumstances.
14. According to Halsbury''s Laws of England/JUDICIAL REVIEW (VOLUME 61 (2010) 5TH EDITION)/5. JUDICIAL REMEDIES/ (1) INTRODUCTION paragraph 689:
“A mandatory order is, in form, a command issuing from the High Court, directed to any person, corporation or inferior tribunal requiring him, or them, to do some particular thing specified in the command which appertains to his or their office and is in the nature of a public duty (See Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 1 All ER 694, HL). The breach of duty may be a failure to exercise a discretion, or a failure to exercise it according to proper legal principles.”
15. This is reiterated in paragraph 703 which states:
“A mandatory order is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or it to do some particular thing specified in the order which appertains to his or its office and is in the nature of a public duty… the purpose of a mandatory order is to compel the performance of a public duty, whether of an inferior court or tribunal to exercise its jurisdiction, or that of an administrative body to fulfil its public law obligations. It is a discretionary remedy.”
16. And with particular reference to public officers who, like in the instant case, fail to perform their duty, paragraph 706 is clear that a mandamus order may be issued to compel them to carry out the duty. It reads as follows:
“706. Public duties by government officials.
If public officials or public bodies fail to perform any public duty with which they have been charged, a mandatory (mandamus) order may be made to compel them to carry out the duty (See R v Metropolitan Police Comr, ex p Blackburn (No 3) [1973] QB 241, [1973] 1 All ER 324, CA; R v London Transport Executive, ex p GLC [1983] QB 484, [1983] 2 All ER 262, DC.)”
17. The applicant has demonstrated that it extracted a certificate of order against government and that the same was duly served upon the respondents. It has not been suggested that it defaulted in any step prescribed under section 21 of the Act as to disentitle it to the order of mandamus.
18. It follows that, a demand for payment having been made and the 2nd and 3rd respondents having failed to pay; no other evidence is required to demonstrate that the respondents have failed to perform a public duty with which they are charged under section 21(3) of the Government Proceedings Act. A mandamus order would properly issue in such circumstances.
19. Accordingly, I hereby allow the applicant’s motion dated 25 March 2025 to the extent that an order of mandamus is hereby issued compelling the County Executive Committee Member, Finance and Economic Planning and/ or the Accounting Officer for County Government of Kilifi to pay Al Mahra Industries Limited, the sum of Kenya Shillings Four Hundred and Fifty-Nine Thousand Three Hundred and Seventy-Six and Thirty-Five Cents (Kshs. 459,376.35) in terms stated in the Certificate of Order against the Government, issued on 28 August 2024. The applicant will also have costs of the suit. Orders accordingly.
'
1. Before court is a motion dated 25 March 2025 expressed to be brought under sections 8 and 9 of the Law Reform Act, cap 26 and Order 53 Rule 3 of the Civil Procedure Rules, 2010. The applicant seeks primarily the order for mandamus for which it has prayed as follows:
“That an Order of Mandamus to issue to compel the County Executive Committee Member, Finance and Economic Planning and/ or the Accounting Officer for County Government of Kilifi to pay to the Exparte Applicant, Al Mahra Industries Limited, the sum of Kenya Shillings Four Hundred and Fifty Nine Thousand Three Hundred and Seventy Six and Thirty Five Cents (Kshs. 459,376.35) being the outstanding costs of the suit as certified as being due and owing from the Respondent to the ex parte applicant Al Mahra Industries Limited arising from the Certificate of Order against the Government issued on 8th May 2024 by the Deputy Registrar of the High Court of Kenya in (Mombasa) constitutional ELC Petition No. 48 of 2019 County Government of Kilifi & Another versus Registrar of Titles Mombasa & others.”
The applicant has also sought for the order for costs.
2. The application is based on a statutory statement dated 10 January 2025 and an affidavit of even date sworn by Mr. Kiarie Kariuki verifying the facts relied upon.
3. Mr. Kariuki has sworn that he is an advocate of this Honourable Court practising as such in the name and style of M/s Kiarie Kariuki, Atieno Obura & Partners Advocates LLP, on record for the ex parte applicant in this application.
4. The applicant, it is sworn, is aggrieved by the respondents’ failure to settle its costs as awarded on 8 May 2024 in Mombasa constitutional Environment and Land Court Petition No. 48 of 2019; County Government of Kilifi & Another versus Registrar of Titles Mombasa & others.
5. It is sworn that by a ruling delivered by the Honourable Mr. Justice Yano on 10 June, 2021 the petitioner''s petition was struck out with costs to the respondents. The applicant was the 16ᵗʰ respondent in the aforesaid petition and was hence entitled to costs.
6. Accordingly, a bill of costs dated 16 June 2023 was filed and a notice of taxation duly served upon the respondents’ advocates. The bill of costs was eventually taxed on 24 April 2024 and, by a ruling delivered by the taxing officer on 8 May 2024, the bill was taxed at Kenya Shillings Four Hundred and Fifty Nine Thousand Three Hundred and Seventy Six and Thirty Five
Cents (Kshs. 459,376.35).
7. The Certificate of Costs dated 8 May 2024 was served upon the respondents on 26 June 2024. Subsequently, the certificate of order against the Government was issued on 28 August 2024 for the sum of Kshs. 459,376.35 being the party and party costs plus interest. The certificate of order against Government was eventually served upon the office of the respondent’s County Attorney on 22 October 2024.
8. Notwithstanding service of the certificate of order against government, the respondents have refused, neglected and failed to settle the applicant''s costs or any part thereof, hence the instant motion.
9. It is the applicant’s position that it is only fair and just that the 2ⁿᵈ or 3ʳᵈ respondents or both of them be ordered or compelled by way of an order of mandamus to carry out their legal obligations under the County Government Act No. 17 of 2012 and pay the party and party costs as certified.
10. The application was not opposed and when it came up for hearing, Mr. Malombo, the learned counsel for the respondents, informed the court that he had not received any instructions from his client to oppose the application.
11. One of the ways through which decrees or orders are enforced is, of course, through execution or attachment. However, the Government is protected from such process of execution or other similar process in enforcement of decrees or orders by section 21 of the Government Proceedings Act, in particular, section 21(3) thereof. That section reads as follows:
21. Satisfaction of orders against the Government
(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:
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) 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.
(5) This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.
12. A County Government is, of course, a “government” in the strict sense of the word but perhaps to discount any doubt of this sort of status of the devolved unit, section 21(5) of the Act makes it clear that a county Government enjoys the same protection from execution and attachment as the National Government.
13. I have consistently held in applications such as the one before court that, in the face of this protection, the only available route open to the applicant is to compel the accounting officer the Government or the concerned Government department to perform his statutory duty under section 21(3) of the Act and pay what has been decreed as due and owing to the applicant. In other words, only the order of mandamus would be the appropriate order under the circumstances.
14. According to Halsbury''s Laws of England/JUDICIAL REVIEW (VOLUME 61 (2010) 5TH EDITION)/5. JUDICIAL REMEDIES/ (1) INTRODUCTION paragraph 689:
“A mandatory order is, in form, a command issuing from the High Court, directed to any person, corporation or inferior tribunal requiring him, or them, to do some particular thing specified in the command which appertains to his or their office and is in the nature of a public duty (See Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 1 All ER 694, HL). The breach of duty may be a failure to exercise a discretion, or a failure to exercise it according to proper legal principles.”
15. This is reiterated in paragraph 703 which states:
“A mandatory order is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or it to do some particular thing specified in the order which appertains to his or its office and is in the nature of a public duty… the purpose of a mandatory order is to compel the performance of a public duty, whether of an inferior court or tribunal to exercise its jurisdiction, or that of an administrative body to fulfil its public law obligations. It is a discretionary remedy.”
16. And with particular reference to public officers who, like in the instant case, fail to perform their duty, paragraph 706 is clear that a mandamus order may be issued to compel them to carry out the duty. It reads as follows:
“706. Public duties by government officials.
If public officials or public bodies fail to perform any public duty with which they have been charged, a mandatory (mandamus) order may be made to compel them to carry out the duty (See R v Metropolitan Police Comr, ex p Blackburn (No 3) [1973] QB 241, [1973] 1 All ER 324, CA; R v London Transport Executive, ex p GLC [1983] QB 484, [1983] 2 All ER 262, DC.)”
17. The applicant has demonstrated that it extracted a certificate of order against government and that the same was duly served upon the respondents. It has not been suggested that it defaulted in any step prescribed under section 21 of the Act as to disentitle it to the order of mandamus.
18. It follows that, a demand for payment having been made and the 2nd and 3rd respondents having failed to pay; no other evidence is required to demonstrate that the respondents have failed to perform a public duty with which they are charged under section 21(3) of the Government Proceedings Act. A mandamus order would properly issue in such circumstances.
19. Accordingly, I hereby allow the applicant’s motion dated 25 March 2025 to the extent that an order of mandamus is hereby issued compelling the County Executive Committee Member, Finance and Economic Planning and/ or the Accounting Officer for County Government of Kilifi to pay Al Mahra Industries Limited, the sum of Kenya Shillings Four Hundred and Fifty-Nine Thousand Three Hundred and Seventy-Six and Thirty-Five Cents (Kshs. 459,376.35) in terms stated in the Certificate of Order against the Government, issued on 28 August 2024. The applicant will also have costs of the suit. Orders accordingly.
'