' The ex-parte Applicant herein filed the Application dated 10th June 2025 pursuant to leave granted by this court on 3 rd April 2025. The ex-parte Applicant seeks an order of mandamus to compel the Respondents to pay the decretal sum of Kshs. 486,013.75 that was awarded in Keroka MCCC No. E045 of 2021 , together with interest until payment in full. The Applicant also prays for the costs of the application.
The ex-parte Applicant’s case was that the Respondents have failed to satisfy the judgment delivered on 25th January 2023 in Keroka MCCC No. E045 of 2021, thus necessitating the present proceedings.
The Respondents opposed the Application through the Grounds of Opposition dated 7 th September 2025 wherein they state that the application is premature, lacks sound legal and factual foundation, and amounts to an abuse of the judicial process. They argued that payment of public funds must strictly adhere to the provisions of sections 102, 107 and 109 of the Public Finance Management Act as well as Chapter XII of the Constitution. The Respondents further submitted that satisfaction of debts and liabilities against the Government is a non-justiciable matter of policy and budgetary allocation, involving several competing interests beyond the Applicant’s single claim. They relied on the provisions of section 32 of the Government Proceedings Act, which provides that decretal liabilities can only be settled out of funds appropriated by Parliament.
The Respondents urged that the Court take judicial notice, under the Evidence Act, that the Government of Kenya is currently facing serious financial constraints, a factor that is beyond their control. They maintained that the Applicant has failed to demonstrate that the non-payment of the decretal sum was occasioned by negligence or intentional indolence on their part. They therefore urged the court to dismiss the application with costs.
The Application was canvassed by way of written submissions which I have considered. I find that the main issues that fall for determination are: -
Whether the Applicant has met the threshold for the grant of an order of mandamus .
Whether the Respondents can rely on budgetary constraints and statutory provisions to indefinitely delay satisfaction of a lawful decree.
Whether the balance of justice tilts in favour of granting the orders sought.
Analysis and Determination
The law is settled that once a court has pronounced itself and issued a decree, the successful litigant is entitled to enjoy the fruits of that judgment. To this end, an order of mandamus exists to compel performance of a statutory duty which a public authority has failed, neglected or refused to perform. Section 21 of the Government Proceedings Act stipulates 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.
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.
If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:
Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.
Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.
In the case of Republic vs. Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) eKLR Githua J. explained the manner in which a successful party can execute a judgment/decree against a government entity as follows: -
“In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, 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. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21 (1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon. Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon. Attorney General, Section 21 (3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon.”
In Republic vs. Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR , the Court of Appeal held: -
“The order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed has failed or refused to perform the same. It is issued to compel the performance of a public duty where there is no other adequate remedy.”
In the present case, it is not disputed that the decretal sum in question has crystallized into a legal obligation as the Respondents do not deny service with the decree, Certificate of Costs and Certificate of Satisfaction of Order. My finding is that the Respondents have a statutory duty, under section 21 of the Government Proceedings Act, to satisfy court decrees issued against them once a certificate of order against the Government has been served.
On the Respondents’ defence on account of Budgetary Constraints, I find that w hile it is true that public expenditure must comply with the Public Finance Management Act, 2012 and Chapter XII of the Constitution, this cannot be a lawful excuse to deny a decree-holder the fruits of a judgment. I find that if courts were to accept budgetary constraints as a defence, Government decrees would remain perpetually unsatisfied thereby rendering judicial decisions illusory. In Republic vs. Attorney General & Another ex parte James Alfred Koroso [2013] eKLR the court emphasized that: -
“The law does not permit the Government to hide behind the shield of public finance procedures in order to avoid meeting its legal obligations under a court decree. To do so would be to undermine the rule of law.”
Taking a cue from the reasoning adopted in the above cited case, and noting that the Respondents have not demonstrated that they have initiated any steps towards a settlement or provide a clear timeline for compliance, I find that the instant application is merited. It is my view that the Respondents’ failure to settle the decretal sum amounts to inaction in the face of a binding judgment.
I further find that the Respondents’ assertion that the Application is premature cannot stand, given that more than two years have elapsed since judgment was delivered in Keroka MCCC No. E045 of 2021 . I find that the continued delay not only prejudices the Applicant but may also erode public confidence in the judicial process.
In Market Plaza Limited vs. Commissioner for Lands & 3 others [2019] eKLR , the Court of Appeal observed that judicial review remedies are discretionary and issued only in exceptional cases. In the present matter, I find that the prolonged failure to honour a lawful decree constitutes such exceptional circumstances.
Disposition
In sum, having found that the Respondents are under a statutory duty to satisfy the decree in Keroka MCCC No. E045 of 2021 and that their continued failure to do so warrants the grant of an order of mandamus, I make the following final orders: -
An order of mandamus is hereby issued compelling the Respondents to pay the Applicant the decretal sum of Kshs. 486,013.75 , together with accrued interest as per the judgment in Keroka MCCC No. E045 of 2021, until payment in full.
The Respondents shall comply within 60 days from the date of this order.
Costs of this Application are awarded to the Ex parte Applicant.
'
The ex-parte Applicant’s case was that the Respondents have failed to satisfy the judgment delivered on 25th January 2023 in Keroka MCCC No. E045 of 2021, thus necessitating the present proceedings.
The Respondents opposed the Application through the Grounds of Opposition dated 7 th September 2025 wherein they state that the application is premature, lacks sound legal and factual foundation, and amounts to an abuse of the judicial process. They argued that payment of public funds must strictly adhere to the provisions of sections 102, 107 and 109 of the Public Finance Management Act as well as Chapter XII of the Constitution. The Respondents further submitted that satisfaction of debts and liabilities against the Government is a non-justiciable matter of policy and budgetary allocation, involving several competing interests beyond the Applicant’s single claim. They relied on the provisions of section 32 of the Government Proceedings Act, which provides that decretal liabilities can only be settled out of funds appropriated by Parliament.
The Respondents urged that the Court take judicial notice, under the Evidence Act, that the Government of Kenya is currently facing serious financial constraints, a factor that is beyond their control. They maintained that the Applicant has failed to demonstrate that the non-payment of the decretal sum was occasioned by negligence or intentional indolence on their part. They therefore urged the court to dismiss the application with costs.
The Application was canvassed by way of written submissions which I have considered. I find that the main issues that fall for determination are: -
Whether the Applicant has met the threshold for the grant of an order of mandamus .
Whether the Respondents can rely on budgetary constraints and statutory provisions to indefinitely delay satisfaction of a lawful decree.
Whether the balance of justice tilts in favour of granting the orders sought.
Analysis and Determination
The law is settled that once a court has pronounced itself and issued a decree, the successful litigant is entitled to enjoy the fruits of that judgment. To this end, an order of mandamus exists to compel performance of a statutory duty which a public authority has failed, neglected or refused to perform. Section 21 of the Government Proceedings Act stipulates 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.
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.
If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:
Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.
Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.
In the case of Republic vs. Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) eKLR Githua J. explained the manner in which a successful party can execute a judgment/decree against a government entity as follows: -
“In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, 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. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21 (1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon. Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon. Attorney General, Section 21 (3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon.”
In Republic vs. Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR , the Court of Appeal held: -
“The order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed has failed or refused to perform the same. It is issued to compel the performance of a public duty where there is no other adequate remedy.”
In the present case, it is not disputed that the decretal sum in question has crystallized into a legal obligation as the Respondents do not deny service with the decree, Certificate of Costs and Certificate of Satisfaction of Order. My finding is that the Respondents have a statutory duty, under section 21 of the Government Proceedings Act, to satisfy court decrees issued against them once a certificate of order against the Government has been served.
On the Respondents’ defence on account of Budgetary Constraints, I find that w hile it is true that public expenditure must comply with the Public Finance Management Act, 2012 and Chapter XII of the Constitution, this cannot be a lawful excuse to deny a decree-holder the fruits of a judgment. I find that if courts were to accept budgetary constraints as a defence, Government decrees would remain perpetually unsatisfied thereby rendering judicial decisions illusory. In Republic vs. Attorney General & Another ex parte James Alfred Koroso [2013] eKLR the court emphasized that: -
“The law does not permit the Government to hide behind the shield of public finance procedures in order to avoid meeting its legal obligations under a court decree. To do so would be to undermine the rule of law.”
Taking a cue from the reasoning adopted in the above cited case, and noting that the Respondents have not demonstrated that they have initiated any steps towards a settlement or provide a clear timeline for compliance, I find that the instant application is merited. It is my view that the Respondents’ failure to settle the decretal sum amounts to inaction in the face of a binding judgment.
I further find that the Respondents’ assertion that the Application is premature cannot stand, given that more than two years have elapsed since judgment was delivered in Keroka MCCC No. E045 of 2021 . I find that the continued delay not only prejudices the Applicant but may also erode public confidence in the judicial process.
In Market Plaza Limited vs. Commissioner for Lands & 3 others [2019] eKLR , the Court of Appeal observed that judicial review remedies are discretionary and issued only in exceptional cases. In the present matter, I find that the prolonged failure to honour a lawful decree constitutes such exceptional circumstances.
Disposition
In sum, having found that the Respondents are under a statutory duty to satisfy the decree in Keroka MCCC No. E045 of 2021 and that their continued failure to do so warrants the grant of an order of mandamus, I make the following final orders: -
An order of mandamus is hereby issued compelling the Respondents to pay the Applicant the decretal sum of Kshs. 486,013.75 , together with accrued interest as per the judgment in Keroka MCCC No. E045 of 2021, until payment in full.
The Respondents shall comply within 60 days from the date of this order.
Costs of this Application are awarded to the Ex parte Applicant.
'