1. Introduction
1. Before this Court is a Judicial Review application brought by the Applicant, Bosire Gichana & Company Advocates, seeking an order of mandamus to compel the Respondent, Kisii County Government, to satisfy a decretal amount arising from a taxed advocate–client bill of costs.
2. The application arises from legal services rendered by the Applicant to the defunct Kisii Municipal Council, whose liabilities were subsequently assumed by the Respondent following the establishment of county governments under the Constitution of Kenya, 2010.
3. The Applicant contends that despite the issuance of a certificate of order against the Government and proper service upon the Respondent, the Respondent has failed, refused and/or neglected to settle the decretal amount.
4. The Court is therefore called upon to determine whether the circumstances of the case justify the issuance of an order of mandamus compelling the Respondent to settle the decretal sum.
2. Background of the Application
5. From the pleadings and documents placed before the Court, the following facts are not disputed:
6. The Applicant acted for the defunct Kisii Municipal Council in KISII CMCC NO. 354 OF 2002 – James Gisemba vs Kisii Municipal Council.
7. Following the conclusion of the matter, the Applicant filed an Advocate–Client Bill of Costs dated 22nd October 2012.
8. The Bill of Costs was taxed, and subsequently judgment was entered in terms of the certificate of costs on 17th December 2018.
9. The decretal amount due and payable to the Applicant was computed as follows:
• Principal sum..................................................Kshs. 361,800
• Interest...............................................................Kshs. 455,868
• Taxation costs....................................................Kshs. 5,000
• Court fees...........................................................Kshs. 500
Total decretal amount: Kshs. 823,168
10. Thereafter, the Applicant applied for and obtained a Certificate of Order Against the Government pursuant to Order 29 Rule 3 of the Civil Procedure Rules and Section 21 of the Government Proceedings Act.
11. The certificate was issued on 22nd February 2022 and served upon the Respondent on 24th February 2022.
12. Despite such service, the Respondent has failed to satisfy the decretal sum.
13. Consequently, the Applicant moved this Court seeking an order of mandamus compelling payment of the decretal amount together with interest at 14% per annum from 22nd February 2022 until payment in full.
3. Issues for Determination
14. Having considered the pleadings and material before the Court, the following issues arise for determination:
1. Whether the Applicant has satisfied the legal requirements for the grant of an order of mandamus.
2. Whether the Respondent is under a statutory duty to satisfy the decretal amount.
3. Whether the Court should grant the orders sought.
4. The Law on Mandamus
14. Mandamus is a judicial review remedy issued to compel the performance of a public duty imposed by statute.
15. The scope of the remedy was authoritatively explained in Kenya National Examinations Council vs Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR, where the Court of Appeal stated:
“Mandamus is a command issued by the High Court to compel the performance of a public duty which is imposed on a person or body of persons by statute and where that person or body has failed to perform the duty.”
16. In matters involving government entities, the procedure for enforcement of decrees is governed by Section 21 of the Government Proceedings Act.
17. Once a certificate of order against the Government is issued and served, the accounting officer of the government entity is under a statutory obligation to satisfy the decree.
18. The Court of Appeal reaffirmed this position in Republic vs Attorney General & Another ex parte James Alfred Koroso [2013] eKLR, where it held that:
“Where a certificate of order against the Government has been issued and served, the Government becomes legally obligated to settle the decretal amount.”
19. The Court further emphasized that the remedy available to enforce such payment is mandamus, since execution proceedings cannot issue against the Government.
5. Analysis
(a) Existence of a valid decree
20. The Applicant has produced evidence showing that an Advocate–Client Bill of Costs was taxed and judgment entered in terms of the certificate of costs.
21. A decree therefore exists and remains valid.
(b) Issuance of a Certificate of Order Against the Government
22. The Applicant also produced a Certificate of Order Against the Government issued on 22nd February 2022.
23. This certificate was issued pursuant to Section 21(1) and (2) of the Government Proceedings Act.
(c) Service upon the Respondent
24. The verifying affidavit demonstrates that the certificate was served upon the offices of the Kisii County Government on 24th February 2022.
25. Service has therefore been sufficiently demonstrated.
(d) Failure to satisfy the decree
26. Despite the service of the certificate, the Respondent has failed to settle the decretal amount.
27. The Respondent has also not placed before the Court any evidence demonstrating that the amount has been paid or that steps have been taken to satisfy the decree.
28. The failure to pay a lawful decree after service of a certificate of order against the Government amounts to a breach of a statutory duty.
29. Courts have consistently held that such circumstances justify the grant of mandamus.
30. In Republic vs Permanent Secretary Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, the Court held:
“Once the certificate of order against the Government is served, the Government is under a statutory obligation to pay and mandamus will issue where payment is not made.”
(e) Liability of County Governments
31. Following the promulgation of the Constitution of Kenya, 2010, county governments assumed the functions and liabilities of the former local authorities.
32. This position was affirmed in Republic vs Town Clerk of Webuye County Council & Another [2014] eKLR, where the Court held that county governments inherit the liabilities of the defunct local authorities.
33. Accordingly, the Respondent cannot avoid liability arising from obligations of the former Kisii Municipal Council.
6. Determination
34. From the material before the Court, the Applicant has demonstrated that:
• A valid decree exists.
• A certificate of order against the Government was issued.
• The certificate was duly served upon the Respondent.
• The Respondent has failed to satisfy the decree.
35. The Court therefore finds that the Applicant has satisfied the legal threshold for the grant of mandamus.
7. Orders
Accordingly, the Court makes the following orders:
1. An order of Mandamus is hereby issued compelling the Respondent, Kisii County Government, to pay to the Applicant the sum of Kshs. 823,168/= being the decretal amount arising from KISII HC MISC APPLICATION NO. 276 OF 2012.
2. The decretal sum shall attract interest at the rate of 14% per annum for a maximum period of 6 years from 22nd February 2022 until payment in full,
3. The Applicant shall have the costs of this Judicial Review application in the sum of 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 Judicial Review application brought by the Applicant, Bosire Gichana & Company Advocates, seeking an order of mandamus to compel the Respondent, Kisii County Government, to satisfy a decretal amount arising from a taxed advocate–client bill of costs.
2. The application arises from legal services rendered by the Applicant to the defunct Kisii Municipal Council, whose liabilities were subsequently assumed by the Respondent following the establishment of county governments under the Constitution of Kenya, 2010.
3. The Applicant contends that despite the issuance of a certificate of order against the Government and proper service upon the Respondent, the Respondent has failed, refused and/or neglected to settle the decretal amount.
4. The Court is therefore called upon to determine whether the circumstances of the case justify the issuance of an order of mandamus compelling the Respondent to settle the decretal sum.
2. Background of the Application
5. From the pleadings and documents placed before the Court, the following facts are not disputed:
6. The Applicant acted for the defunct Kisii Municipal Council in KISII CMCC NO. 354 OF 2002 – James Gisemba vs Kisii Municipal Council.
7. Following the conclusion of the matter, the Applicant filed an Advocate–Client Bill of Costs dated 22nd October 2012.
8. The Bill of Costs was taxed, and subsequently judgment was entered in terms of the certificate of costs on 17th December 2018.
9. The decretal amount due and payable to the Applicant was computed as follows:
• Principal sum..................................................Kshs. 361,800
• Interest...............................................................Kshs. 455,868
• Taxation costs....................................................Kshs. 5,000
• Court fees...........................................................Kshs. 500
Total decretal amount: Kshs. 823,168
10. Thereafter, the Applicant applied for and obtained a Certificate of Order Against the Government pursuant to Order 29 Rule 3 of the Civil Procedure Rules and Section 21 of the Government Proceedings Act.
11. The certificate was issued on 22nd February 2022 and served upon the Respondent on 24th February 2022.
12. Despite such service, the Respondent has failed to satisfy the decretal sum.
13. Consequently, the Applicant moved this Court seeking an order of mandamus compelling payment of the decretal amount together with interest at 14% per annum from 22nd February 2022 until payment in full.
3. Issues for Determination
14. Having considered the pleadings and material before the Court, the following issues arise for determination:
1. Whether the Applicant has satisfied the legal requirements for the grant of an order of mandamus.
2. Whether the Respondent is under a statutory duty to satisfy the decretal amount.
3. Whether the Court should grant the orders sought.
4. The Law on Mandamus
14. Mandamus is a judicial review remedy issued to compel the performance of a public duty imposed by statute.
15. The scope of the remedy was authoritatively explained in Kenya National Examinations Council vs Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR, where the Court of Appeal stated:
“Mandamus is a command issued by the High Court to compel the performance of a public duty which is imposed on a person or body of persons by statute and where that person or body has failed to perform the duty.”
16. In matters involving government entities, the procedure for enforcement of decrees is governed by Section 21 of the Government Proceedings Act.
17. Once a certificate of order against the Government is issued and served, the accounting officer of the government entity is under a statutory obligation to satisfy the decree.
18. The Court of Appeal reaffirmed this position in Republic vs Attorney General & Another ex parte James Alfred Koroso [2013] eKLR, where it held that:
“Where a certificate of order against the Government has been issued and served, the Government becomes legally obligated to settle the decretal amount.”
19. The Court further emphasized that the remedy available to enforce such payment is mandamus, since execution proceedings cannot issue against the Government.
5. Analysis
(a) Existence of a valid decree
20. The Applicant has produced evidence showing that an Advocate–Client Bill of Costs was taxed and judgment entered in terms of the certificate of costs.
21. A decree therefore exists and remains valid.
(b) Issuance of a Certificate of Order Against the Government
22. The Applicant also produced a Certificate of Order Against the Government issued on 22nd February 2022.
23. This certificate was issued pursuant to Section 21(1) and (2) of the Government Proceedings Act.
(c) Service upon the Respondent
24. The verifying affidavit demonstrates that the certificate was served upon the offices of the Kisii County Government on 24th February 2022.
25. Service has therefore been sufficiently demonstrated.
(d) Failure to satisfy the decree
26. Despite the service of the certificate, the Respondent has failed to settle the decretal amount.
27. The Respondent has also not placed before the Court any evidence demonstrating that the amount has been paid or that steps have been taken to satisfy the decree.
28. The failure to pay a lawful decree after service of a certificate of order against the Government amounts to a breach of a statutory duty.
29. Courts have consistently held that such circumstances justify the grant of mandamus.
30. In Republic vs Permanent Secretary Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, the Court held:
“Once the certificate of order against the Government is served, the Government is under a statutory obligation to pay and mandamus will issue where payment is not made.”
(e) Liability of County Governments
31. Following the promulgation of the Constitution of Kenya, 2010, county governments assumed the functions and liabilities of the former local authorities.
32. This position was affirmed in Republic vs Town Clerk of Webuye County Council & Another [2014] eKLR, where the Court held that county governments inherit the liabilities of the defunct local authorities.
33. Accordingly, the Respondent cannot avoid liability arising from obligations of the former Kisii Municipal Council.
6. Determination
34. From the material before the Court, the Applicant has demonstrated that:
• A valid decree exists.
• A certificate of order against the Government was issued.
• The certificate was duly served upon the Respondent.
• The Respondent has failed to satisfy the decree.
35. The Court therefore finds that the Applicant has satisfied the legal threshold for the grant of mandamus.
7. Orders
Accordingly, the Court makes the following orders:
1. An order of Mandamus is hereby issued compelling the Respondent, Kisii County Government, to pay to the Applicant the sum of Kshs. 823,168/= being the decretal amount arising from KISII HC MISC APPLICATION NO. 276 OF 2012.
2. The decretal sum shall attract interest at the rate of 14% per annum for a maximum period of 6 years from 22nd February 2022 until payment in full,
3. The Applicant shall have the costs of this Judicial Review application in the sum of 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