1. Introduction
1. The Applicant, Bosire Gichana & Company Advocates, moved this Court by way of Judicial Review proceedings seeking an order of mandamus to compel the Respondent, the Kisii County Government, to settle a decretal sum arising from court proceedings in Kisii HCCC No. 166 of 2011.
2. The application is grounded on the Statement of Facts and the Verifying Affidavit sworn by Kennedy Bosire Gichana on 16th October 2023, together with the annextures thereto.
3. The Applicant contends that despite obtaining judgment, taxation of costs, and a Certificate of Order Against the Government, the Respondent has failed and/or neglected to satisfy the decree.
2. Factual Background
4. The Applicant acted for the Municipal Council of Kisii, a former local authority whose functions and liabilities were subsequently taken over by the Kisii County Government pursuant to Articles 176 and 184 of the Constitution of Kenya 2010 and the Transition to Devolved Government framework.
5. In Kisii HCCC No. 166 of 2011, judgment was entered against the Municipal Council of Kisii.
6. Following taxation, the court issued a Certificate of Costs dated 25th March 2013 in favour of the Applicant for the sum of:
Kshs. 288,160/=
7. Subsequently, a Certificate of Order Against the Government was issued on 22nd March 2022 pursuant to Section 21 of the Government Proceedings Act and Order 29 Rule 3 of the Civil Procedure Rules.
8. The certificate indicated the decretal amount payable as follows:
Item Amount
Principal sum Kshs. 288,160
Interest Kshs. 359,197.30
Further costs Kshs. 5,000
Certificate fee Kshs. 500
Total Kshs. 652,857.30
9. The Applicant avers that the Certificate of Order Against the Government was served upon the Kisii County Attorney on 6th April 2022, as evidenced by the Affidavit of Service annexed to the application.
10. Despite service and numerous follow-ups, the Respondent has failed and/or refused to settle the decretal amount.
11. The Applicant therefore seeks an order of mandamus compelling payment of the sum of Kshs. 652,857.30 together with interest.
3. Issue for Determination
12. The sole issue for determination is:
Whether the Applicant has established grounds for the grant of an order of mandamus against the Respondent.
4. The Law on Mandamus
13. The remedy of mandamus is a judicial review order issued to compel the performance of a public duty imposed by law.
14. The Court of Appeal in Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR stated:
“An order of mandamus is issued to compel the performance of a public duty which is imposed on a person or body by statute and where that person or body has failed to perform that duty.”
15. In matters involving decrees against the Government, Section 21 of the Government Proceedings Act provides the statutory procedure for enforcement.
16. Once a Certificate of Order Against the Government is issued and served, the relevant accounting officer has a statutory duty to satisfy the decree.
17. The High Court in Republic v Permanent Secretary Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR held:
“Once a certificate of order against the Government has been issued and served, the Government has a statutory duty to settle the decree.”
18. Similarly, the Court of Appeal in Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR affirmed that mandamus is the appropriate remedy to compel payment of a decree against the Government.
5. Analysis
19. From the material placed before the Court, the following facts are not disputed:
• Judgment was entered in favour of the exparte applicant against the respodent in Kisii HCCC No. 166 of 2011.
• Costs were taxed and a Certificate of Costs issued on 25th March 2013.
• A Certificate of Order Against the Government was issued on 22nd March 2022.
• The certificate reflects a decretal sum of Kshs. 652,857.30.
• The certificate was served upon the Kisii County Attorney.
20. The Respondent has not filed any response to challenge the application or to dispute service of the certificate.
21. Once the statutory certificate is served, the Government entity concerned becomes legally obligated to settle the decree.
22. It is also well established that execution proceedings cannot issue against the Government, hence the necessity of the remedy of mandamus.
23. The Respondent’s failure to settle the decree despite service of the certificate amounts to dereliction of a statutory duty.
24. This Court therefore finds that the Applicant has satisfied the conditions for the grant of an order of mandamus.
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6. Disposition
25. In the circumstances, the Court finds merit in the application.
26. Accordingly, the Court makes the following orders:
a. 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. 652,857.30 being the decretal amount in Kisii HCCC No. 166 of 2011.
b. The said amount shall attract interest at court rates at 14 % per annum for a maximum period of 6 years from 22nd February 2022 .
c. The Applicant shall have costs of this Judicial Review application assessed at Kshs. 50,000/= .
T.A ODERA
JUDGE
11.3.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS AT THIS 11TH DAY OF MARCH 2026, IN THE PRESENCE OF CA KIPCHIRCHIR
1. The Applicant, Bosire Gichana & Company Advocates, moved this Court by way of Judicial Review proceedings seeking an order of mandamus to compel the Respondent, the Kisii County Government, to settle a decretal sum arising from court proceedings in Kisii HCCC No. 166 of 2011.
2. The application is grounded on the Statement of Facts and the Verifying Affidavit sworn by Kennedy Bosire Gichana on 16th October 2023, together with the annextures thereto.
3. The Applicant contends that despite obtaining judgment, taxation of costs, and a Certificate of Order Against the Government, the Respondent has failed and/or neglected to satisfy the decree.
2. Factual Background
4. The Applicant acted for the Municipal Council of Kisii, a former local authority whose functions and liabilities were subsequently taken over by the Kisii County Government pursuant to Articles 176 and 184 of the Constitution of Kenya 2010 and the Transition to Devolved Government framework.
5. In Kisii HCCC No. 166 of 2011, judgment was entered against the Municipal Council of Kisii.
6. Following taxation, the court issued a Certificate of Costs dated 25th March 2013 in favour of the Applicant for the sum of:
Kshs. 288,160/=
7. Subsequently, a Certificate of Order Against the Government was issued on 22nd March 2022 pursuant to Section 21 of the Government Proceedings Act and Order 29 Rule 3 of the Civil Procedure Rules.
8. The certificate indicated the decretal amount payable as follows:
Item Amount
Principal sum Kshs. 288,160
Interest Kshs. 359,197.30
Further costs Kshs. 5,000
Certificate fee Kshs. 500
Total Kshs. 652,857.30
9. The Applicant avers that the Certificate of Order Against the Government was served upon the Kisii County Attorney on 6th April 2022, as evidenced by the Affidavit of Service annexed to the application.
10. Despite service and numerous follow-ups, the Respondent has failed and/or refused to settle the decretal amount.
11. The Applicant therefore seeks an order of mandamus compelling payment of the sum of Kshs. 652,857.30 together with interest.
3. Issue for Determination
12. The sole issue for determination is:
Whether the Applicant has established grounds for the grant of an order of mandamus against the Respondent.
4. The Law on Mandamus
13. The remedy of mandamus is a judicial review order issued to compel the performance of a public duty imposed by law.
14. The Court of Appeal in Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR stated:
“An order of mandamus is issued to compel the performance of a public duty which is imposed on a person or body by statute and where that person or body has failed to perform that duty.”
15. In matters involving decrees against the Government, Section 21 of the Government Proceedings Act provides the statutory procedure for enforcement.
16. Once a Certificate of Order Against the Government is issued and served, the relevant accounting officer has a statutory duty to satisfy the decree.
17. The High Court in Republic v Permanent Secretary Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR held:
“Once a certificate of order against the Government has been issued and served, the Government has a statutory duty to settle the decree.”
18. Similarly, the Court of Appeal in Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR affirmed that mandamus is the appropriate remedy to compel payment of a decree against the Government.
5. Analysis
19. From the material placed before the Court, the following facts are not disputed:
• Judgment was entered in favour of the exparte applicant against the respodent in Kisii HCCC No. 166 of 2011.
• Costs were taxed and a Certificate of Costs issued on 25th March 2013.
• A Certificate of Order Against the Government was issued on 22nd March 2022.
• The certificate reflects a decretal sum of Kshs. 652,857.30.
• The certificate was served upon the Kisii County Attorney.
20. The Respondent has not filed any response to challenge the application or to dispute service of the certificate.
21. Once the statutory certificate is served, the Government entity concerned becomes legally obligated to settle the decree.
22. It is also well established that execution proceedings cannot issue against the Government, hence the necessity of the remedy of mandamus.
23. The Respondent’s failure to settle the decree despite service of the certificate amounts to dereliction of a statutory duty.
24. This Court therefore finds that the Applicant has satisfied the conditions for the grant of an order of mandamus.
________________________________________
6. Disposition
25. In the circumstances, the Court finds merit in the application.
26. Accordingly, the Court makes the following orders:
a. 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. 652,857.30 being the decretal amount in Kisii HCCC No. 166 of 2011.
b. The said amount shall attract interest at court rates at 14 % per annum for a maximum period of 6 years from 22nd February 2022 .
c. The Applicant shall have costs of this Judicial Review application assessed at Kshs. 50,000/= .
T.A ODERA
JUDGE
11.3.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS AT THIS 11TH DAY OF MARCH 2026, IN THE PRESENCE OF CA KIPCHIRCHIR