Introduction
1. Before this Court is a Notice of Motion dated 27th November 2023 brought pursuant to Order 53 Rule 3 of the Civil Procedure Rules, Section 8 and 9 of the Law Reform Act, and all other enabling provisions of the law, in which the Ex-parte Applicant seeks an order of mandamus compelling the Respondent to satisfy a decretal sum arising from taxed advocate–client costs.
2. The specific order sought is that this Court be pleased to issue an order of mandamus directing the Kisii County Government to pay the Ex-parte Applicant the sum of Kshs. 209,249.15 together with interest at the rate of 14% per annum from 22nd February 2022 until payment in full, being the decretal sum in Kisii HC Misc. Application No. 278 of 2012.
3. The application is supported by the verifying affidavit of Kennedy Bosire Gichana sworn on 16th October 2023 together with the statement of facts and annexures.
Background
4. The Applicant is a firm of advocates practicing in Kisii County.
5. It is deponed that the Applicant previously acted for the defunct Kisii Municipal Council in Kisii CMCC No. 411 of 2010 between Julius Moturi Bichang’a vs Kisii Municipal Council.
6. Following the legal services rendered, the Applicant filed an Advocate–Client Bill of Costs dated 22nd October 2012, which was taxed on 25th March 2013.
7. Judgment was subsequently entered in terms of the Certificate of Costs on 17th December 2018 in Kisii HC Misc. Application No. 278 of 2012.
8. Thereafter, a Certificate of Order against the Government pursuant to Order 29 Rule 3 of the Civil Procedure Rules was issued on 22nd February 2022 for the sum of Kshs. 209,249.15.
9. The Applicant further states that the said certificate was duly served upon the Kisii County Attorney’s Office on 24th February 2022, as evidenced by the affidavit of service sworn by Nyandoro Joyce.
10. Despite service and several follow-ups, the Respondent has allegedly failed, refused and/or neglected to settle the decretal sum, hence the present application seeking an order of mandamus.
Issue for Determination
11. The issue falling for determination is:
Whether the Applicant has satisfied the conditions necessary for the grant of an order of mandamus compelling the Respondent to pay the decretal sum.
The Law on Mandamus
12. The remedy of mandamus is a prerogative order issued to compel the performance of a public duty imposed by law where a public authority has failed or refused to perform that duty.
13. The scope of mandamus was explained in Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & Others, where the Court of Appeal stated:
“An order of mandamus will issue to compel a public body to perform a duty imposed upon it by statute where it has failed or refused to do so.”
14. Similarly, the Court of Appeal in Republic v Permanent Secretary Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza held that once a judgment has been obtained against the Government and a certificate of order against the Government issued and served, the accounting officer is under a statutory duty to settle the decretal sum.
15. Under Section 21 of the Government Proceedings Act, once a certificate of order against the Government is issued and served, the relevant accounting officer is obligated to pay the amount specified therein.
Analysis
16. The material before the Court demonstrates that an Advocate–Client Bill of Costs dated 22nd October 2012 was taxed on 25th March 2013.
17. The Court subsequently entered judgment in terms of the certificate of costs on 17th December 2018.
18. A Certificate of Order against the Government dated 22nd February 2022 was thereafter issued for Kshs. 209,249.15, comprising:
• Principal sum – Kshs. 91,095
• Interest – Kshs. 112,654.15
• Costs – Kshs. 5,000
• Certificate fee – Kshs. 500
19. The Court also notes that the Applicant has annexed an affidavit of service confirming service of the certificate upon the Kisii County Attorney on 24th February 2022.
20. The Respondent has not placed before this Court any evidence demonstrating payment of the decretal sum or any lawful justification for failure to comply with the statutory obligation to settle the decree.
21. It is settled law that execution cannot issue against Government entities, and therefore the only remedy available to a decree holder is an order of mandamus compelling payment.
22. The High Court reiterated this principle in Republic v Attorney General & Another ex parte James Alfred Koroso, where it held that mandamus is the appropriate remedy where Government fails to satisfy a decree.
23. In the present case, the Applicant has demonstrated:
a. Existence of a valid decree
b. Issuance of a certificate of order against the Government
c. Service of the certificate upon the Respondent
d. Failure by the Respondent to settle the decretal amount
24. The Court is therefore satisfied that the statutory threshold for the grant of an order of mandamus has been met .
Determination
25. Having considered the application, the affidavit evidence and the applicable law, the Court finds that the application is meritorious.
Orders
26. Accordingly, the Court makes the following orders:
1. An order of Mandamus is hereby issued compelling the Respondent, the Kisii County Government, through its accounting officer, to pay the Applicant the sum of Kshs. . 209,249.15 being the decretal amount in Kisii High court Misc. Application No. 278 of 2012.
2. The said amount shall attract interest at court rates at 14 % per annum for a maximum period of 6 years from 22nd February 2022 .
3. The Applicant shall have costs of this Judicial Review proceedings assessed at Kshs.
50,000/= .
T.A ODERA
JUDGE
11.3.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS 11TH DAY OF MARCH 2026, IN THE PRESENCE OF MR BOSIRE GICHANA FOR THE EX-PARTE APPLICANT & COURT ASSISTANT MR KIPCHIRCHIR
1. Before this Court is a Notice of Motion dated 27th November 2023 brought pursuant to Order 53 Rule 3 of the Civil Procedure Rules, Section 8 and 9 of the Law Reform Act, and all other enabling provisions of the law, in which the Ex-parte Applicant seeks an order of mandamus compelling the Respondent to satisfy a decretal sum arising from taxed advocate–client costs.
2. The specific order sought is that this Court be pleased to issue an order of mandamus directing the Kisii County Government to pay the Ex-parte Applicant the sum of Kshs. 209,249.15 together with interest at the rate of 14% per annum from 22nd February 2022 until payment in full, being the decretal sum in Kisii HC Misc. Application No. 278 of 2012.
3. The application is supported by the verifying affidavit of Kennedy Bosire Gichana sworn on 16th October 2023 together with the statement of facts and annexures.
Background
4. The Applicant is a firm of advocates practicing in Kisii County.
5. It is deponed that the Applicant previously acted for the defunct Kisii Municipal Council in Kisii CMCC No. 411 of 2010 between Julius Moturi Bichang’a vs Kisii Municipal Council.
6. Following the legal services rendered, the Applicant filed an Advocate–Client Bill of Costs dated 22nd October 2012, which was taxed on 25th March 2013.
7. Judgment was subsequently entered in terms of the Certificate of Costs on 17th December 2018 in Kisii HC Misc. Application No. 278 of 2012.
8. Thereafter, a Certificate of Order against the Government pursuant to Order 29 Rule 3 of the Civil Procedure Rules was issued on 22nd February 2022 for the sum of Kshs. 209,249.15.
9. The Applicant further states that the said certificate was duly served upon the Kisii County Attorney’s Office on 24th February 2022, as evidenced by the affidavit of service sworn by Nyandoro Joyce.
10. Despite service and several follow-ups, the Respondent has allegedly failed, refused and/or neglected to settle the decretal sum, hence the present application seeking an order of mandamus.
Issue for Determination
11. The issue falling for determination is:
Whether the Applicant has satisfied the conditions necessary for the grant of an order of mandamus compelling the Respondent to pay the decretal sum.
The Law on Mandamus
12. The remedy of mandamus is a prerogative order issued to compel the performance of a public duty imposed by law where a public authority has failed or refused to perform that duty.
13. The scope of mandamus was explained in Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & Others, where the Court of Appeal stated:
“An order of mandamus will issue to compel a public body to perform a duty imposed upon it by statute where it has failed or refused to do so.”
14. Similarly, the Court of Appeal in Republic v Permanent Secretary Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza held that once a judgment has been obtained against the Government and a certificate of order against the Government issued and served, the accounting officer is under a statutory duty to settle the decretal sum.
15. Under Section 21 of the Government Proceedings Act, once a certificate of order against the Government is issued and served, the relevant accounting officer is obligated to pay the amount specified therein.
Analysis
16. The material before the Court demonstrates that an Advocate–Client Bill of Costs dated 22nd October 2012 was taxed on 25th March 2013.
17. The Court subsequently entered judgment in terms of the certificate of costs on 17th December 2018.
18. A Certificate of Order against the Government dated 22nd February 2022 was thereafter issued for Kshs. 209,249.15, comprising:
• Principal sum – Kshs. 91,095
• Interest – Kshs. 112,654.15
• Costs – Kshs. 5,000
• Certificate fee – Kshs. 500
19. The Court also notes that the Applicant has annexed an affidavit of service confirming service of the certificate upon the Kisii County Attorney on 24th February 2022.
20. The Respondent has not placed before this Court any evidence demonstrating payment of the decretal sum or any lawful justification for failure to comply with the statutory obligation to settle the decree.
21. It is settled law that execution cannot issue against Government entities, and therefore the only remedy available to a decree holder is an order of mandamus compelling payment.
22. The High Court reiterated this principle in Republic v Attorney General & Another ex parte James Alfred Koroso, where it held that mandamus is the appropriate remedy where Government fails to satisfy a decree.
23. In the present case, the Applicant has demonstrated:
a. Existence of a valid decree
b. Issuance of a certificate of order against the Government
c. Service of the certificate upon the Respondent
d. Failure by the Respondent to settle the decretal amount
24. The Court is therefore satisfied that the statutory threshold for the grant of an order of mandamus has been met .
Determination
25. Having considered the application, the affidavit evidence and the applicable law, the Court finds that the application is meritorious.
Orders
26. Accordingly, the Court makes the following orders:
1. An order of Mandamus is hereby issued compelling the Respondent, the Kisii County Government, through its accounting officer, to pay the Applicant the sum of Kshs. . 209,249.15 being the decretal amount in Kisii High court Misc. Application No. 278 of 2012.
2. The said amount shall attract interest at court rates at 14 % per annum for a maximum period of 6 years from 22nd February 2022 .
3. The Applicant shall have costs of this Judicial Review proceedings assessed at Kshs.
50,000/= .
T.A ODERA
JUDGE
11.3.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS 11TH DAY OF MARCH 2026, IN THE PRESENCE OF MR BOSIRE GICHANA FOR THE EX-PARTE APPLICANT & COURT ASSISTANT MR KIPCHIRCHIR