1. Through the Application, dated 3rd November 2025 the applicant seeks for orders that:
1) …Spent.
2) THAT this Honourable Court be pleased to issue a Certificate of Order for Payment against the Government, in accordance with Section 21 of the Government Proceedings Act (Cap 40), in favour of the Applicant, Daniel Kiprugut Kipyegon, arising from the judgment and decree in HCJR 146 of 2019, Danie/ Kiprugut Kipyegon v. National Council for Persons with Disabilities.
3) THAT this Honourable Court be pleased to convert the Party and Party Certificate of Taxation dated 26th March 2025 into a Court Decree against the Respondent for a sum of Kenya Shillings Five Hundred Seventy Thousand, Three Hundred and Ninety—One (Kshs. 570,391/=).
4) THAT the Honourable Court be pleased to order that interest on the taxed costs do accrue at court rates from 6th July 2023 (date of judgment) until payment in full.
5) THAT the costs of this application be borne by the Respondent
6) THAT this Honourable Court do make such further and/or other orders as may meet the ends of justice.
2. The applicant is a person with a physical disability within the meaning of Section 2 of the Persons with Disabilities Act, 2025, and thus entitled to equal protection and benefit of the law under Article 54 of the Constitution.
3. Judgment was delivered on 6th July 2023 in the applicant’s favour in HCJR No. 146 of 2019: Daniel Kiprugut Kipyegon v. National Council for Persons with Disabilities.
4. Thereafter a Party—to—Party Bill of Costs was taxed at Kshs. 570,391/= on 20th February 2025, and a Certificate of Taxation issued on 26th March 2025.
5. It is the applicant’s case that despite service of the Certificate of Taxation upon the Respondent, no payment was made, compelling him to file a Judicial Review Application for Mandamus seeking to compel payment of the said amount.
6. It is his case that on 2nd July 2025, the Respondent, through the Office of the Attorney General, sought 21 days to facilitate settlement, which period has since lapsed without any payment.
7. It is his case that the Attorney General's Office has advised him that payment cannot be processed without a Certificate of Order for Payment against the Government, as required under Section 21 of the Government Proceedings Act.The application is unopposed.
8. In the case of Republic vs Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex-Parte Fredrick Manoah Egunza 120121 eKLR the court stated thus with regards to monetary decrees issued against the Government.
... when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree."[Emphasis Added]
9. Section 21 (1) and (2) of the Government Proceedings Act, Cap 40 provides as follows:
"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".
10. The Applicant in whose favour the order (judgement) is made is required by law to apply for the certificate after the expiry of twenty-one (21) days from the date of the order and if there is an order for costs an application for the said certificate may be applied for after the costs have been taxed.
11. The said certificate must be in the prescribed form. Order 29 Rule 3 uses the word "shall" in referring to the forms Nos 22 and 23 of Appendix A.
12. The Applicant ought to have made an Application to the Registrar for issuance of the Certificate of Order against Government against the Government.
13. From the evidence in the Supporting Affidavit, The Applicant has not demonstrated that he sought or applied for the said Certificate.
14. In the case of Republic v Principal Magistrate's Court at Mavoko & another Ex-Parte Joseph Ole Lenku Governor Kajiado County & another 12018] eKLR in explaining this statutory requirement stated thus: -
"... a party wishing to realize the fruits of a judgement against the government must first start by getting issued with a certificate of costs and certificate of order against the Government." [Emphasis Added].
15. The essence of the aforesaid procedure as observed in Permanent Secretary Office of The President, Ministry of Internal Security & Another Ex-parte Nassir Mwandihi [2014] eKLR, is to give adequate notice to the Government to make arrangements to satisfy the decree.
16. Informed by the foregoing and in determining prayer 2 of the application, it is this court’s finding that The applicant should approach the registrar for the issuance of the Certificate of Order that he is seeking from this court.
17. The second issue is whether the award comprised in the certificate of taxation issued upon taxation of the party and party bill of costs requires an order of the court adopting the award as a judgment/Decree of the court before it can be enforced.
18. Section 51 of the Advocates Act provides thus:“(1)Every application for an order for the taxation of an advocate’s bill or for the delivery of such a bill and the delivering up of any deeds, documents and papers by an advocate shall be made in the matter of that advocate. (2) The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”
19. It is clear from the wording Section 51 of the Advocates Act that the framework makes provision for the taxing of an advocate/ client bill of costs.
20. It requires that the advocate’s bill of cost be made/ drawn “In the matter of that advocate” eg “In the matter of an application for taxation of a bill of costs by .….. Advocate.” An advocate/client bill of costs is normally presented as a stand-alone miscellaneous application.
21. Section 51(2) requires that where a bill of costs has been taxed and the fact of retainer of the advocate by the client is not in contest, an application for adoption of the award as a judgment of the court be made to the court.
22. This requirement does not apply to a certificate of taxation issued pursuant to a party and party bill of costs. This is because, a party and party bill of costs, unlike an advocate/client bill of costs, is filed in an existing cause where either a judgment or final ruling has already been rendered and an award of costs has been made. It does not require a second judgment in the same cause.
23. There is a distinction between a certificate of taxation issued pursuant to an advocate/client bill of costs and a certificate of taxation issued pursuant to a party and party bill of costs.
24. A certificate of taxation issued pursuant to a party and party bill of costs does not require to be adopted as a judgment of the court before it can be enforced.
25. In the case of Wanjiru Gikonyo & 2 others v National Assembly and Ex parte Middle East Consultancy Services [2016] eKLR,where the Court reaffirmed that judicial power is exercised only where a real, crystallised, and live controversy exists, not in anticipation of future events.
26. In the Wanjiru Gikonyo & 2 others case (supra) Onguto, J. stated:27.Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases. The court is not expected to engage in abstract arguments.
27. The award became available for enforcement once the certificate of taxation was issued and Prayer 3 does not raise a real dispute and it is moot and I so hold.
28. The court has taken note of the fact that the applicant is a person with a disability as a result of which there is a need for the court to ensure that the it promotes his right to a speedy access to redress. The court has done that through the directions it issues herein below.
29. On another front, the applicant sought an order that the interest on the taxed costs do accrue at court rates from 6th July 2023 (date of judgment) until payment in full.
30. The court did not issue any orders as to interest on costs in the judgment that was issued on 6th day of July 2023.
31. The power to award interest by a Court is discretionary under section 26 of the Civil Procedure Act Chapter 21 Laws of Kenya.
32. It is a settled principle that this discretion is quite wide and the same ought to be exercised judicially.In Salim& Another vs Kikava (1989) KLR 534 the Court of Appeal held that although a Court had wide discretion in awarding interest under Section 26 of the Civil Procedure Act, the discretion should be exercised judicially.
33. In the instant case,the Party—to—Party Bill of Costs was taxed at Kshs. 570,391/= on 20th February 2025, and a Certificate of Taxation issued on 26th March 2025.
34. The amount payable in costs and the liability to pay the costs was ascertained on 20th February 2025 when costs were taxed as set out in the Certificate of Taxation issued on 26th March 2025.Interest can only be pegged on that date and amount.
35. The applicant is entitled to interest on costs from 20th February 2025 and I so hold.
Order:
1) Prayer 2 is dismissed.
2) The Applicant shall apply to the Deputy Registrar for a Certificate of Order within seven days.
3) Prayer 3 is dismissed.
4) The Applicant is entitled to the interest on the costs with effect from 20th February 2025.
5) Costs to the applicant.
1) …Spent.
2) THAT this Honourable Court be pleased to issue a Certificate of Order for Payment against the Government, in accordance with Section 21 of the Government Proceedings Act (Cap 40), in favour of the Applicant, Daniel Kiprugut Kipyegon, arising from the judgment and decree in HCJR 146 of 2019, Danie/ Kiprugut Kipyegon v. National Council for Persons with Disabilities.
3) THAT this Honourable Court be pleased to convert the Party and Party Certificate of Taxation dated 26th March 2025 into a Court Decree against the Respondent for a sum of Kenya Shillings Five Hundred Seventy Thousand, Three Hundred and Ninety—One (Kshs. 570,391/=).
4) THAT the Honourable Court be pleased to order that interest on the taxed costs do accrue at court rates from 6th July 2023 (date of judgment) until payment in full.
5) THAT the costs of this application be borne by the Respondent
6) THAT this Honourable Court do make such further and/or other orders as may meet the ends of justice.
2. The applicant is a person with a physical disability within the meaning of Section 2 of the Persons with Disabilities Act, 2025, and thus entitled to equal protection and benefit of the law under Article 54 of the Constitution.
3. Judgment was delivered on 6th July 2023 in the applicant’s favour in HCJR No. 146 of 2019: Daniel Kiprugut Kipyegon v. National Council for Persons with Disabilities.
4. Thereafter a Party—to—Party Bill of Costs was taxed at Kshs. 570,391/= on 20th February 2025, and a Certificate of Taxation issued on 26th March 2025.
5. It is the applicant’s case that despite service of the Certificate of Taxation upon the Respondent, no payment was made, compelling him to file a Judicial Review Application for Mandamus seeking to compel payment of the said amount.
6. It is his case that on 2nd July 2025, the Respondent, through the Office of the Attorney General, sought 21 days to facilitate settlement, which period has since lapsed without any payment.
7. It is his case that the Attorney General's Office has advised him that payment cannot be processed without a Certificate of Order for Payment against the Government, as required under Section 21 of the Government Proceedings Act.The application is unopposed.
8. In the case of Republic vs Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex-Parte Fredrick Manoah Egunza 120121 eKLR the court stated thus with regards to monetary decrees issued against the Government.
... when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree."[Emphasis Added]
9. Section 21 (1) and (2) of the Government Proceedings Act, Cap 40 provides as follows:
"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".
10. The Applicant in whose favour the order (judgement) is made is required by law to apply for the certificate after the expiry of twenty-one (21) days from the date of the order and if there is an order for costs an application for the said certificate may be applied for after the costs have been taxed.
11. The said certificate must be in the prescribed form. Order 29 Rule 3 uses the word "shall" in referring to the forms Nos 22 and 23 of Appendix A.
12. The Applicant ought to have made an Application to the Registrar for issuance of the Certificate of Order against Government against the Government.
13. From the evidence in the Supporting Affidavit, The Applicant has not demonstrated that he sought or applied for the said Certificate.
14. In the case of Republic v Principal Magistrate's Court at Mavoko & another Ex-Parte Joseph Ole Lenku Governor Kajiado County & another 12018] eKLR in explaining this statutory requirement stated thus: -
"... a party wishing to realize the fruits of a judgement against the government must first start by getting issued with a certificate of costs and certificate of order against the Government." [Emphasis Added].
15. The essence of the aforesaid procedure as observed in Permanent Secretary Office of The President, Ministry of Internal Security & Another Ex-parte Nassir Mwandihi [2014] eKLR, is to give adequate notice to the Government to make arrangements to satisfy the decree.
16. Informed by the foregoing and in determining prayer 2 of the application, it is this court’s finding that The applicant should approach the registrar for the issuance of the Certificate of Order that he is seeking from this court.
17. The second issue is whether the award comprised in the certificate of taxation issued upon taxation of the party and party bill of costs requires an order of the court adopting the award as a judgment/Decree of the court before it can be enforced.
18. Section 51 of the Advocates Act provides thus:“(1)Every application for an order for the taxation of an advocate’s bill or for the delivery of such a bill and the delivering up of any deeds, documents and papers by an advocate shall be made in the matter of that advocate. (2) The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.”
19. It is clear from the wording Section 51 of the Advocates Act that the framework makes provision for the taxing of an advocate/ client bill of costs.
20. It requires that the advocate’s bill of cost be made/ drawn “In the matter of that advocate” eg “In the matter of an application for taxation of a bill of costs by .….. Advocate.” An advocate/client bill of costs is normally presented as a stand-alone miscellaneous application.
21. Section 51(2) requires that where a bill of costs has been taxed and the fact of retainer of the advocate by the client is not in contest, an application for adoption of the award as a judgment of the court be made to the court.
22. This requirement does not apply to a certificate of taxation issued pursuant to a party and party bill of costs. This is because, a party and party bill of costs, unlike an advocate/client bill of costs, is filed in an existing cause where either a judgment or final ruling has already been rendered and an award of costs has been made. It does not require a second judgment in the same cause.
23. There is a distinction between a certificate of taxation issued pursuant to an advocate/client bill of costs and a certificate of taxation issued pursuant to a party and party bill of costs.
24. A certificate of taxation issued pursuant to a party and party bill of costs does not require to be adopted as a judgment of the court before it can be enforced.
25. In the case of Wanjiru Gikonyo & 2 others v National Assembly and Ex parte Middle East Consultancy Services [2016] eKLR,where the Court reaffirmed that judicial power is exercised only where a real, crystallised, and live controversy exists, not in anticipation of future events.
26. In the Wanjiru Gikonyo & 2 others case (supra) Onguto, J. stated:27.Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases. The court is not expected to engage in abstract arguments.
27. The award became available for enforcement once the certificate of taxation was issued and Prayer 3 does not raise a real dispute and it is moot and I so hold.
28. The court has taken note of the fact that the applicant is a person with a disability as a result of which there is a need for the court to ensure that the it promotes his right to a speedy access to redress. The court has done that through the directions it issues herein below.
29. On another front, the applicant sought an order that the interest on the taxed costs do accrue at court rates from 6th July 2023 (date of judgment) until payment in full.
30. The court did not issue any orders as to interest on costs in the judgment that was issued on 6th day of July 2023.
31. The power to award interest by a Court is discretionary under section 26 of the Civil Procedure Act Chapter 21 Laws of Kenya.
32. It is a settled principle that this discretion is quite wide and the same ought to be exercised judicially.In Salim& Another vs Kikava (1989) KLR 534 the Court of Appeal held that although a Court had wide discretion in awarding interest under Section 26 of the Civil Procedure Act, the discretion should be exercised judicially.
33. In the instant case,the Party—to—Party Bill of Costs was taxed at Kshs. 570,391/= on 20th February 2025, and a Certificate of Taxation issued on 26th March 2025.
34. The amount payable in costs and the liability to pay the costs was ascertained on 20th February 2025 when costs were taxed as set out in the Certificate of Taxation issued on 26th March 2025.Interest can only be pegged on that date and amount.
35. The applicant is entitled to interest on costs from 20th February 2025 and I so hold.
Order:
1) Prayer 2 is dismissed.
2) The Applicant shall apply to the Deputy Registrar for a Certificate of Order within seven days.
3) Prayer 3 is dismissed.
4) The Applicant is entitled to the interest on the costs with effect from 20th February 2025.
5) Costs to the applicant.