Vide Originating Summons dated 23rd June 2025 the Ex -Parte Applicant sought for orders of mandamus directed at Respondents to pay to the Applicant the sum of Kshs 1,777,208/= being the judgment sum plus taxed costs and accrued interest as at the time of drawing certificate of order against the County Government in Migori CMCCC No. 102 of 2019.
The Applicant also sought for costs of the application.
The application was premised on the grounds on its face and the supporting affidavit of the Applicant sworn on 3rd July 2025
In response to the application the Respondents filed Replying Affidavit sworn by Mr. Gidion Orimbo Advocate on 5th February 2026 and Notice of Preliminary Objection dated 5th February 2026 to the effect that the application is premature and failed to adhere to the provisions of Order 22 Rule 18 of the Civil Procedure Rules and should therefore be struck out. It is averred in the supporting affidavit that the Applicant failed to exhaust the avenues before the trial court which has scheduled the same for directions for settlement within this financial year.
It was also averred that following warrants issued in the trial court parties agreed to anchor payments within the 2026 financial year.
Mr. Orimbo in the affidavit confirmed that it was not in dispute that that the Applicant held a decree against the Respondents but leave ought to have been sought to reapply for notice to effect fresh operation of the decree. It was contended that avenues before the trial court were active and were therefore not exhausted. The Respondents sought that the application be dismissed.
When Mr. Agure Odero Advocate came to court on behalf of the Respondents on 19th November 2025 and he indicated that the matter was clear and could be settled. He sought for time to consult his client but on return he indicated he had filed a Replying Affidavit and Preliminary Objection.
The Objection was canvassed by way of written submissions.
The Respondents filed submissions dated 5th March 2026 reiterating the averments in the supporting affidavit and submitted that the matter was substantially heard in the trial court and therefore they will suffer double jeopardy if the execution process herein proceeds.
The Applicant’s submissions are dated 6th May, 2026 and are to the effect that Order 22 rule 18 of the Civil Procedure Rules provides that where an application for execution is made-
a) more than one year after the date of the decree;
b) against the legal representative of a party to the decree; or
c) for attachment of salary or allowance of any person under rule 43,
the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against hint;
Provided that no such notice shall be necessary in consequence of more that one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom the execution is applied for, made on any previous application for execution or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the court has ordered execution to issue against him
It was submitted that Order 22 rule 18 relates to the requirement of a Notice to Show Cause for executing a decree after 12 months, this is separate from the earlier statutory requirement to seek leave for judicial review. That the Applicant by approaching this Court via Originating Summons is not undertaking an execution process but rather seeking for judicial review orders of mandamus. The Applicant averred that the judgment in the initial matter was entered more than 4 years ago on 27/4/2022 in his favour and up to date it remains unsettled by the Respondents and that the delay triggered the filing of a Notice to Show Cause in the lower court and subsequently the matter herein.
It was submitted that the Respondents in their Replying affidavit sworn on 5th February 2026 acknowledged that they are not in dispute of the Applicant's averments and that the process of payment was anchored on 2026 financial year. The Respondents in essence are alluding to the fact that they have to get budgetary allocation to satisfy the decree (this is a decree passed over four years ago). The Ex Parte Applicant questioned whether he is entitled to enjoy fruits of judgment and for how long he will continue holding a decree in his favour in his hands without access to justice?
The Applicant further submitted that the notice of preliminary objection raised by the Respondents is aimed at delaying further this matter, and implored the court to decline.
Similarly, the Applicant submitted that the Respondents introduction of the issue of res judicata in their submissions dated 5th March 2026 pursuant to Section 7 of the Civil Procedure Rules, was new as it was not raised in their notice of preliminary objection dated 5th February 2026.
The Applicant cited the Supreme Court holding in Communications of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR (Supreme Court of Kenya) where it articulated the elements of the doctrine as follows:
“the matter in issue must have been directly and substantially in issue in a former suit; the former suit must have been between the same parties or parties claiming under them; the issue must have been heard and finally determined; and the court that determined it must have been competent.”
The Applicant’s Counsel submitted that the present matter is confined strictly to a judicial review of the legality and fairness of the Respondents administrative actions and/or inactions and on that basis, the Applicant argues that the suits are not identical in subject matter nor in the nature of the reliefs sought and that the doctrine of res judicata is therefore inapplicable.
Therefore, the call for striking out of the originating summons as submitted by the Respondents is misguided and might drive away the Applicant from the seat of justice without having the main issues in dispute determined.
The Applicant urged the court to find that the Notice of Preliminary Objection is devoid of merit and should be dismissed with costs to the
ANALYSIS AND DETERMINATION
The issue for determination is whether the Notice of Preliminary Objection dated 5th February 2026 is merited and whether it warrants the striking out of the Originating Summons seeking an order of mandamus.
The law on preliminary objections is now settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd Law JA stated that a preliminary objection consists of a pure point of law which is argued on the assumption that all facts pleaded by the opposite side are correct and which, if successful, may dispose of the suit. A preliminary objection cannot be founded on contested facts or matters requiring ascertainment through evidence.
The Respondents' objection is premised on the contention that the application is premature, that the Applicant failed to comply with Order 22 Rule 18 of the Civil Procedure Rules, and that avenues before the trial court had not been exhausted because settlement discussions and execution proceedings were still ongoing.
In this Court's view, those grounds do not constitute pure points of law capable of disposing of the matter without interrogation of facts.
First, the question whether parties agreed to anchor payment within the 2026 financial year is a factual issue. The Court would be required to examine evidence regarding the alleged agreement, the circumstances under which it was made, and whether it was binding upon the Applicant. Such inquiry falls outside the scope of a preliminary objection.
Secondly, the Respondents rely on the assertion that directions for settlement were pending before the subordinate court and that execution processes remained active. Whether such processes were indeed pending, their nature, and their legal effect on the present proceedings are matters of fact requiring evidentiary examination.
Thirdly, the reliance on Order 22 Rule 18 is misplaced. The present proceedings are not execution proceedings within the meaning of Order 22 of the Civil Procedure Rules. They are proceedings seeking an order of mandamus to compel a public body to satisfy a decree after issuance of a Certificate of Order Against the Government. The remedy of mandamus is a distinct public law remedy invoked where a decree holder is unable to execute against Government entities due to statutory restrictions on execution against Government property.
The Court notes that it is not disputed that:
1. Judgment was entered in favour of the Applicant on 27th April 2022.
2. A decree exists against the Respondents.
3. The decretal sum remains unpaid.
4. The Respondents acknowledge the existence of the decree and merely contend that payment is tied to budgetary allocation within the 2026 financial year.
The Respondents have therefore not demonstrated how Order 22 Rule 18 bars the institution of judicial review proceedings seeking mandamus.
Further, the issue of res judicata raised in the Respondents' submissions cannot avail them. A party is bound by its pleadings and by the grounds expressly contained in its Notice of Preliminary Objection. The objection before the Court does not raise res judicata. In any event, proceedings for mandamus to compel satisfaction of a decree are distinct from the original suit in which judgment was obtained. The cause of action, issues for determination, and reliefs sought are different.
The Court is also mindful that a decree holder is entitled to enjoy the fruits of a judgment. The judgment in the subordinate court was delivered over four years ago and remains unsatisfied. The Respondents' explanation that payment awaits budgetary allocation does not, by itself, extinguish the statutory duty imposed upon public officers to satisfy lawful court decrees.
Accordingly, the Court finds that the matters raised by the Respondents require evidentiary proof and do not amount to pure points of law. The Notice of Preliminary Objection therefore fails the test laid down in Mukisa Biscuit and is devoid of merit and the same is dismissed with costs to the Applicant.
The Originating Summons seeking an order of mandamus shall proceed to hearing and determination on its merits.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 25TH DAY OFJUNE, 2026.
The Applicant also sought for costs of the application.
The application was premised on the grounds on its face and the supporting affidavit of the Applicant sworn on 3rd July 2025
In response to the application the Respondents filed Replying Affidavit sworn by Mr. Gidion Orimbo Advocate on 5th February 2026 and Notice of Preliminary Objection dated 5th February 2026 to the effect that the application is premature and failed to adhere to the provisions of Order 22 Rule 18 of the Civil Procedure Rules and should therefore be struck out. It is averred in the supporting affidavit that the Applicant failed to exhaust the avenues before the trial court which has scheduled the same for directions for settlement within this financial year.
It was also averred that following warrants issued in the trial court parties agreed to anchor payments within the 2026 financial year.
Mr. Orimbo in the affidavit confirmed that it was not in dispute that that the Applicant held a decree against the Respondents but leave ought to have been sought to reapply for notice to effect fresh operation of the decree. It was contended that avenues before the trial court were active and were therefore not exhausted. The Respondents sought that the application be dismissed.
When Mr. Agure Odero Advocate came to court on behalf of the Respondents on 19th November 2025 and he indicated that the matter was clear and could be settled. He sought for time to consult his client but on return he indicated he had filed a Replying Affidavit and Preliminary Objection.
The Objection was canvassed by way of written submissions.
The Respondents filed submissions dated 5th March 2026 reiterating the averments in the supporting affidavit and submitted that the matter was substantially heard in the trial court and therefore they will suffer double jeopardy if the execution process herein proceeds.
The Applicant’s submissions are dated 6th May, 2026 and are to the effect that Order 22 rule 18 of the Civil Procedure Rules provides that where an application for execution is made-
a) more than one year after the date of the decree;
b) against the legal representative of a party to the decree; or
c) for attachment of salary or allowance of any person under rule 43,
the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against hint;
Provided that no such notice shall be necessary in consequence of more that one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom the execution is applied for, made on any previous application for execution or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the court has ordered execution to issue against him
It was submitted that Order 22 rule 18 relates to the requirement of a Notice to Show Cause for executing a decree after 12 months, this is separate from the earlier statutory requirement to seek leave for judicial review. That the Applicant by approaching this Court via Originating Summons is not undertaking an execution process but rather seeking for judicial review orders of mandamus. The Applicant averred that the judgment in the initial matter was entered more than 4 years ago on 27/4/2022 in his favour and up to date it remains unsettled by the Respondents and that the delay triggered the filing of a Notice to Show Cause in the lower court and subsequently the matter herein.
It was submitted that the Respondents in their Replying affidavit sworn on 5th February 2026 acknowledged that they are not in dispute of the Applicant's averments and that the process of payment was anchored on 2026 financial year. The Respondents in essence are alluding to the fact that they have to get budgetary allocation to satisfy the decree (this is a decree passed over four years ago). The Ex Parte Applicant questioned whether he is entitled to enjoy fruits of judgment and for how long he will continue holding a decree in his favour in his hands without access to justice?
The Applicant further submitted that the notice of preliminary objection raised by the Respondents is aimed at delaying further this matter, and implored the court to decline.
Similarly, the Applicant submitted that the Respondents introduction of the issue of res judicata in their submissions dated 5th March 2026 pursuant to Section 7 of the Civil Procedure Rules, was new as it was not raised in their notice of preliminary objection dated 5th February 2026.
The Applicant cited the Supreme Court holding in Communications of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR (Supreme Court of Kenya) where it articulated the elements of the doctrine as follows:
“the matter in issue must have been directly and substantially in issue in a former suit; the former suit must have been between the same parties or parties claiming under them; the issue must have been heard and finally determined; and the court that determined it must have been competent.”
The Applicant’s Counsel submitted that the present matter is confined strictly to a judicial review of the legality and fairness of the Respondents administrative actions and/or inactions and on that basis, the Applicant argues that the suits are not identical in subject matter nor in the nature of the reliefs sought and that the doctrine of res judicata is therefore inapplicable.
Therefore, the call for striking out of the originating summons as submitted by the Respondents is misguided and might drive away the Applicant from the seat of justice without having the main issues in dispute determined.
The Applicant urged the court to find that the Notice of Preliminary Objection is devoid of merit and should be dismissed with costs to the
ANALYSIS AND DETERMINATION
The issue for determination is whether the Notice of Preliminary Objection dated 5th February 2026 is merited and whether it warrants the striking out of the Originating Summons seeking an order of mandamus.
The law on preliminary objections is now settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd Law JA stated that a preliminary objection consists of a pure point of law which is argued on the assumption that all facts pleaded by the opposite side are correct and which, if successful, may dispose of the suit. A preliminary objection cannot be founded on contested facts or matters requiring ascertainment through evidence.
The Respondents' objection is premised on the contention that the application is premature, that the Applicant failed to comply with Order 22 Rule 18 of the Civil Procedure Rules, and that avenues before the trial court had not been exhausted because settlement discussions and execution proceedings were still ongoing.
In this Court's view, those grounds do not constitute pure points of law capable of disposing of the matter without interrogation of facts.
First, the question whether parties agreed to anchor payment within the 2026 financial year is a factual issue. The Court would be required to examine evidence regarding the alleged agreement, the circumstances under which it was made, and whether it was binding upon the Applicant. Such inquiry falls outside the scope of a preliminary objection.
Secondly, the Respondents rely on the assertion that directions for settlement were pending before the subordinate court and that execution processes remained active. Whether such processes were indeed pending, their nature, and their legal effect on the present proceedings are matters of fact requiring evidentiary examination.
Thirdly, the reliance on Order 22 Rule 18 is misplaced. The present proceedings are not execution proceedings within the meaning of Order 22 of the Civil Procedure Rules. They are proceedings seeking an order of mandamus to compel a public body to satisfy a decree after issuance of a Certificate of Order Against the Government. The remedy of mandamus is a distinct public law remedy invoked where a decree holder is unable to execute against Government entities due to statutory restrictions on execution against Government property.
The Court notes that it is not disputed that:
1. Judgment was entered in favour of the Applicant on 27th April 2022.
2. A decree exists against the Respondents.
3. The decretal sum remains unpaid.
4. The Respondents acknowledge the existence of the decree and merely contend that payment is tied to budgetary allocation within the 2026 financial year.
The Respondents have therefore not demonstrated how Order 22 Rule 18 bars the institution of judicial review proceedings seeking mandamus.
Further, the issue of res judicata raised in the Respondents' submissions cannot avail them. A party is bound by its pleadings and by the grounds expressly contained in its Notice of Preliminary Objection. The objection before the Court does not raise res judicata. In any event, proceedings for mandamus to compel satisfaction of a decree are distinct from the original suit in which judgment was obtained. The cause of action, issues for determination, and reliefs sought are different.
The Court is also mindful that a decree holder is entitled to enjoy the fruits of a judgment. The judgment in the subordinate court was delivered over four years ago and remains unsatisfied. The Respondents' explanation that payment awaits budgetary allocation does not, by itself, extinguish the statutory duty imposed upon public officers to satisfy lawful court decrees.
Accordingly, the Court finds that the matters raised by the Respondents require evidentiary proof and do not amount to pure points of law. The Notice of Preliminary Objection therefore fails the test laid down in Mukisa Biscuit and is devoid of merit and the same is dismissed with costs to the Applicant.
The Originating Summons seeking an order of mandamus shall proceed to hearing and determination on its merits.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 25TH DAY OFJUNE, 2026.