Introduction
1. The Applicants filed the Notice of Motion dated 26th September 2025, brought pursuant to leave granted on 25th September 2025, Sections 8 and 9 of the Law Reform Act, Cap 26 Laws of Kenya, and Order 53 Rule 3 of the Civil Procedure Rules, 2010.
2. The Applicants seek an order of mandamus compelling the County Secretary, Kisii County, and the Chief Officer, Finance, Kisii County, to pay Kshs. 170,930/= in party and party costs, as taxed and certified by this Court’s order dated 20th March 2024 in Kisii High Court Judicial Review Application No. E001 of 2022. They also request that the Court set a timeline for payment, grant liberty to apply for consequential orders, and award costs of this application.
3. The application is supported by the Statutory Statement and Verifying Affidavit sworn by Dr John Aboko Kumenda. The Applicants’ case is that by an order delivered on 20th March 2024, the certificate of taxation was amended from Kshs. 341,860/= to Kshs. 170,930/=. An amended certificate of taxation was thereafter issued by the Deputy Registrar, and a Certificate of Order for Costs Against the Government was also issued. The Applicants aver that the said order, amended certificate, certificate of order for costs and demands for payment were duly served upon the Respondents, but the Respondents have failed, refused or neglected to pay the certified sum.
4. The application is opposed by the Replying Affidavit of Anne Githinji, Advocate, sworn on 4th February 2026. The Respondents do not substantially dispute the existence of the taxed costs in the sum of Kshs. 170,930/=. Their main response is that an order of mandamus ought not to issue against the County Secretary because execution of debts against a county government can only be issued against the Chief Officer, Finance of the respective County Government. They further state that Kisii County Government is facing budgetary constraints and is burdened by many decrees and accumulated interest totalling over Kshs. 300 million. They ask that the parties be allowed to negotiate a mode of payment and return to court with a realistic proposal on timelines or instalments.
Issues for Determination
5. Having considered the Notice of Motion, the affidavits, the annexures and the Applicants’ written submissions, the issues that arise for determination are:
a. Whether the Applicants have complied with the legal requirements for enforcement of a money order against a County Government;
b. Whether an order of mandamus should issue;
c. Against whom the order should issue;
d. Whether budgetary constraints are a lawful answer to the application; and
e. Who should bear the costs of the application.
Whether the Applicants complied with Section 21 of the Government Proceedings Act
6. The law governing satisfaction of orders against the Government is found in Section 21 of the Government Proceedings Act. Section 21(1) provides that where an order, including an order for costs, is made in favour of a person against the Government, the proper officer of the court shall, after the expiry of twenty-one days from the date of the order or, where costs require taxation, after taxation, issue a certificate in the prescribed form containing particulars of the order. Section 21(3) further provides that where the order provides for payment of money or costs, the certificate shall state the amount payable and the accounting officer concerned shall pay the amount appearing by the certificate to be due, together with interest, if any, lawfully due thereon. Section 21(4) bars ordinary execution, attachment or like process against the Government, while Section 21(5) applies the section, with necessary modifications, to county governments.
7. The legal effect of the foregoing provisions is settled. A decree holder against the Government or a county government cannot proceed by way of ordinary execution. The available route, once the statutory certificate has been issued and served and the accounting officer has failed to pay, is to seek an order of mandamus compelling performance of the statutory duty to pay.
8. In Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, the Court held that after a certificate of order against the Government is served, Section 21(3) imposes a statutory duty upon the accounting officer concerned to pay the sums specified in the certificate to the person entitled or to that person’s advocate, together with any lawful interest.
9. In the present matter, the Applicants have placed before the Court an order dated 20th March 2024 amending the certificate of taxation to Kshs. 170,930/=, an amended certificate of taxation, a Certificate of Order for Costs Against the Government issued on 11th July 2025, letters demanding payment, affidavits of service and notices to the relevant county offices. The Respondents do not deny that the sum of Kshs. 170,930/= was certified. They also do not deny, with any specificity, the service of the documents relied upon by the Applicants.
10. I am therefore satisfied that the Applicants have complied with the statutory procedure under Section 21 of the Government Proceedings Act and Order 29 Rule 3 of the Civil Procedure Rules.
Whether mandamus should issue
11. The scope of mandamus is well settled. It is a judicial command issued to compel the performance of a public duty where a public officer, public body or statutory authority has failed to perform a duty imposed by law and where the applicant has a legal right to expect performance of that duty. The Court of Appeal in Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & others stated that mandamus issues to compel the performance of a public duty where there is a specific legal right and no equally convenient, beneficial and effectual remedy. This principle has been consistently applied in proceedings seeking to compel satisfaction of decrees against public bodies.
12. Once the Applicants obtained a valid certificate of order for costs against the Government and served it upon the relevant county offices, a statutory duty arose to satisfy the certified amount. The certified costs have not been appealed against, reviewed, set aside or varied. The Respondents have not placed before the Court any stay of execution, order suspending payment, or any lawful basis upon which the Applicants’ entitlement should remain unpaid.
13. The continued non-payment of the certified sum denies the Applicants the fruits of their judgment and undermines the authority of court orders. A public body is not at liberty to decide whether or when to obey court orders. The law gives county governments protection from attachment and ordinary execution, but that protection is balanced by the statutory duty of the accounting officer to satisfy certified decrees and orders.
14. I therefore find that the Applicants have established a clear legal right to payment and that the relevant accounting officer has a corresponding public duty to pay. Mandamus is therefore merited.
Against whom should the order issue?
15. The Respondents have argued that mandamus cannot properly issue against the County Secretary and that the proper officer is the Chief Officer Finance. This objection requires consideration of the statutory role of the accounting officer.
16. Section 21(3) of the Government Proceedings Act places the duty to pay upon the “Accounting Officer for the Government department concerned.” In the county context, Section 148 of the Public Finance Management Act provides that the County Executive Committee Member for finance designates accounting officers to be responsible for managing the finances of county government entities, and that, unless another law provides otherwise, the person responsible for the administration of a county government entity is the accounting officer responsible for managing the finances of that entity. Section 149 then sets out the responsibilities of accounting officers, including ensuring that expenditure is lawful, authorised, effective, efficient, economical and transparent.
17. In this matter, the office expressly pleaded that the 2nd Respondent, the Chief Officer Finance, Kisii County, is responsible for finance. The Replying Affidavit itself acknowledges that, in relation to debts of the County Government, the proper officer against whom mandamus should issue is the Chief Officer Finance. I agree with that position to the extent that the duty to satisfy the certificate of order for costs lies with the relevant accounting officer.
18. The County Secretary is the head of the county public service and may play an administrative or coordinating role within the county executive. However, the Applicants have not demonstrated that the County Secretary is the accounting officer upon whom Section 21(3) imposes the direct statutory duty to pay the certified costs. It would therefore be inappropriate to issue a coercive order of mandamus requiring the County Secretary personally or directly to perform a payment function which the law assigns to the relevant accounting officer.
19. That finding, however, does not defeat the application. The proper accounting officer, namely the 2nd Respondent, is before the Court. The misjoinder or joinder of the County Secretary does not erase the Applicants’ right to relief against the officer upon whom the statutory duty rests. The order shall therefore issue against the 2nd Respondent in his or her official capacity as Chief Officer, Finance and Accounting Services, Kisii County.
Whether budgetary constraints are a defence
20. The Respondents have urged the Court to consider Kisii County Government’s budgetary constraints, the existence of other decrees and the need to restructure payments. The Court appreciates that county governments operate within budgetary frameworks and that public finance must be managed prudently.
21. However, budgetary constraints alone are not a lawful basis for disobeying or indefinitely postponing compliance with court orders. The duty under Section 21(3) of the Government Proceedings Act is not made conditional upon the convenience of the budget cycle. Courts have held that once the statutory process has been complied with and a certificate of order has been served, the duty to pay arises; payment is not defeated merely by an assertion that there is no budgetary allocation.
22. In the present case, the amount involved is Kshs. 170,930/=. The Respondents have not placed before the Court any payment plan, any written proposal to the Applicants, any evidence of an actual budget line awaiting approval, or any concrete steps taken towards settlement. What is before the Court is a general plea for time. A general plea of financial difficulty cannot override a certified court order, particularly where the Applicants have already served the certificate of order and demands and no lawful challenge to the certificate exists. This court is aware that Government spending in Kenya is budget-based; this is a 2024 debt that ought to have been budgeted for in the current Financial Year 2025/2026, which is coming to an end on 30.6.26. We are not told whether the debt herein was budgeted for in this financial year, as required by law.
23. I therefore reject the Respondents’ request to defer the matter indefinitely for negotiations. Parties are always at liberty to agree on payment logistics, but such negotiations cannot be used to suspend a statutory duty or deny the Applicants the fruits of their judgment.
Costs
24. On the issue of costs, it is trite law that costs follow the event unless the Court, for good reason, orders otherwise. The Applicants have been compelled to institute these proceedings to enforce payment of costs already taxed and certified. The Respondents have not given a lawful justification for non-payment. I therefore find that the Applicants are entitled to the costs of this application.
Disposition
25. In the result, the Notice of Motion dated 26th September 2025 succeeds to the extent set out below:
a. An order of mandamus is hereby issued directed to the 2nd Respondent, the Chief Officer Finance and Accounting Services, Kisii County, in his or her official capacity as the relevant accounting officer of the County Government of Kisii, compelling the said officer to satisfy the Certificate of Order for Costs Against the Government issued on 11th July 2025 pursuant to the order of this Court dated 20th March 2024 in Kisii High Court Judicial Review Application No. E001 of 2022 by paying to the Applicants, or to their advocates on record, the certified sum of Kshs. 170,930/=.
b. The said sum shall be paid within thirty (15) days from the date of service of this Ruling and the extracted order upon the 2nd Respondent.
d. The prayer for mandamus against the 1st Respondent, the County Secretary, Kisii County, is declined to the extent that no direct statutory duty to pay the certified amount has been demonstrated against that office.
e. Costs of the proceedi.ngs herein to the applicant
f. The Applicants shall be at liberty to apply for consequential orders in the event of non-compliance.
26. It is so ordered.
T.A ODERA
JUDGE
10.6.26
SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 10TH DAY OF JUNE 2026 IN THE PRESENCE OF MISS GITHINJI FOR THE RESPONDENTS : CA BUSIENEI
1. The Applicants filed the Notice of Motion dated 26th September 2025, brought pursuant to leave granted on 25th September 2025, Sections 8 and 9 of the Law Reform Act, Cap 26 Laws of Kenya, and Order 53 Rule 3 of the Civil Procedure Rules, 2010.
2. The Applicants seek an order of mandamus compelling the County Secretary, Kisii County, and the Chief Officer, Finance, Kisii County, to pay Kshs. 170,930/= in party and party costs, as taxed and certified by this Court’s order dated 20th March 2024 in Kisii High Court Judicial Review Application No. E001 of 2022. They also request that the Court set a timeline for payment, grant liberty to apply for consequential orders, and award costs of this application.
3. The application is supported by the Statutory Statement and Verifying Affidavit sworn by Dr John Aboko Kumenda. The Applicants’ case is that by an order delivered on 20th March 2024, the certificate of taxation was amended from Kshs. 341,860/= to Kshs. 170,930/=. An amended certificate of taxation was thereafter issued by the Deputy Registrar, and a Certificate of Order for Costs Against the Government was also issued. The Applicants aver that the said order, amended certificate, certificate of order for costs and demands for payment were duly served upon the Respondents, but the Respondents have failed, refused or neglected to pay the certified sum.
4. The application is opposed by the Replying Affidavit of Anne Githinji, Advocate, sworn on 4th February 2026. The Respondents do not substantially dispute the existence of the taxed costs in the sum of Kshs. 170,930/=. Their main response is that an order of mandamus ought not to issue against the County Secretary because execution of debts against a county government can only be issued against the Chief Officer, Finance of the respective County Government. They further state that Kisii County Government is facing budgetary constraints and is burdened by many decrees and accumulated interest totalling over Kshs. 300 million. They ask that the parties be allowed to negotiate a mode of payment and return to court with a realistic proposal on timelines or instalments.
Issues for Determination
5. Having considered the Notice of Motion, the affidavits, the annexures and the Applicants’ written submissions, the issues that arise for determination are:
a. Whether the Applicants have complied with the legal requirements for enforcement of a money order against a County Government;
b. Whether an order of mandamus should issue;
c. Against whom the order should issue;
d. Whether budgetary constraints are a lawful answer to the application; and
e. Who should bear the costs of the application.
Whether the Applicants complied with Section 21 of the Government Proceedings Act
6. The law governing satisfaction of orders against the Government is found in Section 21 of the Government Proceedings Act. Section 21(1) provides that where an order, including an order for costs, is made in favour of a person against the Government, the proper officer of the court shall, after the expiry of twenty-one days from the date of the order or, where costs require taxation, after taxation, issue a certificate in the prescribed form containing particulars of the order. Section 21(3) further provides that where the order provides for payment of money or costs, the certificate shall state the amount payable and the accounting officer concerned shall pay the amount appearing by the certificate to be due, together with interest, if any, lawfully due thereon. Section 21(4) bars ordinary execution, attachment or like process against the Government, while Section 21(5) applies the section, with necessary modifications, to county governments.
7. The legal effect of the foregoing provisions is settled. A decree holder against the Government or a county government cannot proceed by way of ordinary execution. The available route, once the statutory certificate has been issued and served and the accounting officer has failed to pay, is to seek an order of mandamus compelling performance of the statutory duty to pay.
8. In Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, the Court held that after a certificate of order against the Government is served, Section 21(3) imposes a statutory duty upon the accounting officer concerned to pay the sums specified in the certificate to the person entitled or to that person’s advocate, together with any lawful interest.
9. In the present matter, the Applicants have placed before the Court an order dated 20th March 2024 amending the certificate of taxation to Kshs. 170,930/=, an amended certificate of taxation, a Certificate of Order for Costs Against the Government issued on 11th July 2025, letters demanding payment, affidavits of service and notices to the relevant county offices. The Respondents do not deny that the sum of Kshs. 170,930/= was certified. They also do not deny, with any specificity, the service of the documents relied upon by the Applicants.
10. I am therefore satisfied that the Applicants have complied with the statutory procedure under Section 21 of the Government Proceedings Act and Order 29 Rule 3 of the Civil Procedure Rules.
Whether mandamus should issue
11. The scope of mandamus is well settled. It is a judicial command issued to compel the performance of a public duty where a public officer, public body or statutory authority has failed to perform a duty imposed by law and where the applicant has a legal right to expect performance of that duty. The Court of Appeal in Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & others stated that mandamus issues to compel the performance of a public duty where there is a specific legal right and no equally convenient, beneficial and effectual remedy. This principle has been consistently applied in proceedings seeking to compel satisfaction of decrees against public bodies.
12. Once the Applicants obtained a valid certificate of order for costs against the Government and served it upon the relevant county offices, a statutory duty arose to satisfy the certified amount. The certified costs have not been appealed against, reviewed, set aside or varied. The Respondents have not placed before the Court any stay of execution, order suspending payment, or any lawful basis upon which the Applicants’ entitlement should remain unpaid.
13. The continued non-payment of the certified sum denies the Applicants the fruits of their judgment and undermines the authority of court orders. A public body is not at liberty to decide whether or when to obey court orders. The law gives county governments protection from attachment and ordinary execution, but that protection is balanced by the statutory duty of the accounting officer to satisfy certified decrees and orders.
14. I therefore find that the Applicants have established a clear legal right to payment and that the relevant accounting officer has a corresponding public duty to pay. Mandamus is therefore merited.
Against whom should the order issue?
15. The Respondents have argued that mandamus cannot properly issue against the County Secretary and that the proper officer is the Chief Officer Finance. This objection requires consideration of the statutory role of the accounting officer.
16. Section 21(3) of the Government Proceedings Act places the duty to pay upon the “Accounting Officer for the Government department concerned.” In the county context, Section 148 of the Public Finance Management Act provides that the County Executive Committee Member for finance designates accounting officers to be responsible for managing the finances of county government entities, and that, unless another law provides otherwise, the person responsible for the administration of a county government entity is the accounting officer responsible for managing the finances of that entity. Section 149 then sets out the responsibilities of accounting officers, including ensuring that expenditure is lawful, authorised, effective, efficient, economical and transparent.
17. In this matter, the office expressly pleaded that the 2nd Respondent, the Chief Officer Finance, Kisii County, is responsible for finance. The Replying Affidavit itself acknowledges that, in relation to debts of the County Government, the proper officer against whom mandamus should issue is the Chief Officer Finance. I agree with that position to the extent that the duty to satisfy the certificate of order for costs lies with the relevant accounting officer.
18. The County Secretary is the head of the county public service and may play an administrative or coordinating role within the county executive. However, the Applicants have not demonstrated that the County Secretary is the accounting officer upon whom Section 21(3) imposes the direct statutory duty to pay the certified costs. It would therefore be inappropriate to issue a coercive order of mandamus requiring the County Secretary personally or directly to perform a payment function which the law assigns to the relevant accounting officer.
19. That finding, however, does not defeat the application. The proper accounting officer, namely the 2nd Respondent, is before the Court. The misjoinder or joinder of the County Secretary does not erase the Applicants’ right to relief against the officer upon whom the statutory duty rests. The order shall therefore issue against the 2nd Respondent in his or her official capacity as Chief Officer, Finance and Accounting Services, Kisii County.
Whether budgetary constraints are a defence
20. The Respondents have urged the Court to consider Kisii County Government’s budgetary constraints, the existence of other decrees and the need to restructure payments. The Court appreciates that county governments operate within budgetary frameworks and that public finance must be managed prudently.
21. However, budgetary constraints alone are not a lawful basis for disobeying or indefinitely postponing compliance with court orders. The duty under Section 21(3) of the Government Proceedings Act is not made conditional upon the convenience of the budget cycle. Courts have held that once the statutory process has been complied with and a certificate of order has been served, the duty to pay arises; payment is not defeated merely by an assertion that there is no budgetary allocation.
22. In the present case, the amount involved is Kshs. 170,930/=. The Respondents have not placed before the Court any payment plan, any written proposal to the Applicants, any evidence of an actual budget line awaiting approval, or any concrete steps taken towards settlement. What is before the Court is a general plea for time. A general plea of financial difficulty cannot override a certified court order, particularly where the Applicants have already served the certificate of order and demands and no lawful challenge to the certificate exists. This court is aware that Government spending in Kenya is budget-based; this is a 2024 debt that ought to have been budgeted for in the current Financial Year 2025/2026, which is coming to an end on 30.6.26. We are not told whether the debt herein was budgeted for in this financial year, as required by law.
23. I therefore reject the Respondents’ request to defer the matter indefinitely for negotiations. Parties are always at liberty to agree on payment logistics, but such negotiations cannot be used to suspend a statutory duty or deny the Applicants the fruits of their judgment.
Costs
24. On the issue of costs, it is trite law that costs follow the event unless the Court, for good reason, orders otherwise. The Applicants have been compelled to institute these proceedings to enforce payment of costs already taxed and certified. The Respondents have not given a lawful justification for non-payment. I therefore find that the Applicants are entitled to the costs of this application.
Disposition
25. In the result, the Notice of Motion dated 26th September 2025 succeeds to the extent set out below:
a. An order of mandamus is hereby issued directed to the 2nd Respondent, the Chief Officer Finance and Accounting Services, Kisii County, in his or her official capacity as the relevant accounting officer of the County Government of Kisii, compelling the said officer to satisfy the Certificate of Order for Costs Against the Government issued on 11th July 2025 pursuant to the order of this Court dated 20th March 2024 in Kisii High Court Judicial Review Application No. E001 of 2022 by paying to the Applicants, or to their advocates on record, the certified sum of Kshs. 170,930/=.
b. The said sum shall be paid within thirty (15) days from the date of service of this Ruling and the extracted order upon the 2nd Respondent.
d. The prayer for mandamus against the 1st Respondent, the County Secretary, Kisii County, is declined to the extent that no direct statutory duty to pay the certified amount has been demonstrated against that office.
e. Costs of the proceedi.ngs herein to the applicant
f. The Applicants shall be at liberty to apply for consequential orders in the event of non-compliance.
26. It is so ordered.
T.A ODERA
JUDGE
10.6.26
SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 10TH DAY OF JUNE 2026 IN THE PRESENCE OF MISS GITHINJI FOR THE RESPONDENTS : CA BUSIENEI