' Pursuant to leave of the Court granted on 5 th December 2024, the Ex Parte Applicants herein moved this Court by way of Notice of Motion dated 6 th December 2024 seeking an order of mandamus against the Attorney General and Solicitor General. The purpose of the application was to compel payment of a decretal sum of Kshs. 1,917,143 and taxed costs of Kshs. 227,645 arising from Keroka Principal Magistrate’s Court Case No. 173 of 2018 – Jane Moraa Onsombi & Dennis Ongaro Onsombi (suing as legal representatives of the Estate of Patrick Onkangi Onsombi) vs. Hon. Attorney General.
The Applicants also sought the court’s intervention to set a timeline for the payment of the decretal sum together with accruing interest, liberty to seek further orders as necessary, and costs of the application.
The Application is supported by Jane Moraa Onsombi’s affidavit wherein she recounted that judgment, in the original suit, was delivered on 28 th July 2021 in favour of the plaintiffs, a decree was issued, a Party-to-Party Bill of Costs was taxed on 16 th April 2024, and a Certificate of Costs issued. She averred that a Certificate of Satisfaction Order dated 25 th April 2024 was also issued which documents were duly served on the Respondents by 2 nd May 2024, and a demand letter was sent on 29th April 2024, but payment was not made thereby prompting the filing of the present application.
The Respondents opposed the Application through Grounds of Opposition dated 20 th June 2024 wherein they state that the Application is premature, is unsupported by factual evidence or law, and amounts to an abuse of the court process.
The Application was canvassed by way of written submissions which I have considered.
Issues for Determination, Analysis and Determination
Having carefully considered the pleadings and submissions, I find that the issues for determination are:
Whether an order of mandamus is available to compel satisfaction of a decree against the government.
Whether the applicants have met the legal threshold for the grant of such an order in the circumstances of this case.
1. Mandamus
Section 21(4) of the Government Proceedings Act (Cap. 40) makes the prerogative order of mandamus the only lawful avenue to compel satisfaction of money decrees against government entities. The section stipulates as follows: -
21. Satisfaction of orders against the Government
(4) 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 Kenya National Examinations Council vs. Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR the Court of Appeal described mandamus as a broad remedial order that compels the performance of a public duty imposed by statute.
Similarly, in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR , the High Court held that once a Certificate of Order Against the Government is issued and served, the relevant accounting officer bears a statutory duty to satisfy the decree. It is therefore my finding that mandamus is, in principle, available to the applicants.
2. On whether the applicants have met the threshold
The respondents relied on the decision in Republic vs. Principal Secretary, Ministry of Internal Security & Another ex parte Schon Noorani & Another [2018] eKLR , where the court set out eight mandatory requirements for mandamus, including: a public legal duty owed, a clear right to its performance, satisfaction of conditions precedent, prior demand, refusal or neglect, absence of alternative remedy, and no equitable bar. In the present case, I note that the Applicants established that: - Judgment was delivered on in their favour on 28 th July 2021.
Costs were taxed and a Certificate of Order Against the Government issued on 25 th April 2024.
Service of the decree and certificate was effected by 2 nd May 2024.
A demand letter was issued on 29 th April 2024.
The respondents argued that service was irregular as it was effected at the Attorney General’s Nairobi office rather than Kisii, and that the lapse of 10 days before filing the application was insufficient to constitute refusal or neglect.
While service at the proper office is a procedural requirement, this Court takes judicial notice that the Attorney General and Solicitor General are national offices with statutory responsibility under Article 156 of the Constitution and Section 21 of the Government Proceedings Act and with countrywide presence. I find that receipt of the documents in Nairobi therefore satisfied service.
On the argument of prematurity, the law does not prescribe a fixed statutory timeline after service beyond the 21 days post-judgment required for issuance of the certificate. It is my finding that once a demand is made and payment is not forthcoming, a presumption of refusal may arise. In Republic vs. Attorney General & Another ex parte Stephen Wanyee Roki [2016] eKLR , the court held that continued delay in settling a decree after proper demand justifies mandamus.
Accordingly, I find that the applicants have met the conditions for mandamus, save for the prayer for interest.
In conclusion, I am satisfied that the respondents have a statutory duty to satisfy the decree in Keroka PMCC No. 173 of 2018 . It is my finding that the applicants have complied with all procedural requirements under Section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules. The respondents’ continued failure to pay amounts to a dereliction of duty.
Orders
An order of mandamus is hereby issued compelling the Principal Secretary, Ministry of Interior and National Administration, being the relevant accounting officer, to pay the ex parte applicants the sum of Kshs. 1,917,143 together with Kshs. 227,645 as taxed costs, in compliance with the Certificate of Order Against the Government dated 25th April 2024.
Payment shall be made within ninety (90) days from the date of this judgment.
The respondents shall bear the costs of this application.
'
The Applicants also sought the court’s intervention to set a timeline for the payment of the decretal sum together with accruing interest, liberty to seek further orders as necessary, and costs of the application.
The Application is supported by Jane Moraa Onsombi’s affidavit wherein she recounted that judgment, in the original suit, was delivered on 28 th July 2021 in favour of the plaintiffs, a decree was issued, a Party-to-Party Bill of Costs was taxed on 16 th April 2024, and a Certificate of Costs issued. She averred that a Certificate of Satisfaction Order dated 25 th April 2024 was also issued which documents were duly served on the Respondents by 2 nd May 2024, and a demand letter was sent on 29th April 2024, but payment was not made thereby prompting the filing of the present application.
The Respondents opposed the Application through Grounds of Opposition dated 20 th June 2024 wherein they state that the Application is premature, is unsupported by factual evidence or law, and amounts to an abuse of the court process.
The Application was canvassed by way of written submissions which I have considered.
Issues for Determination, Analysis and Determination
Having carefully considered the pleadings and submissions, I find that the issues for determination are:
Whether an order of mandamus is available to compel satisfaction of a decree against the government.
Whether the applicants have met the legal threshold for the grant of such an order in the circumstances of this case.
1. Mandamus
Section 21(4) of the Government Proceedings Act (Cap. 40) makes the prerogative order of mandamus the only lawful avenue to compel satisfaction of money decrees against government entities. The section stipulates as follows: -
21. Satisfaction of orders against the Government
(4) 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 Kenya National Examinations Council vs. Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR the Court of Appeal described mandamus as a broad remedial order that compels the performance of a public duty imposed by statute.
Similarly, in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR , the High Court held that once a Certificate of Order Against the Government is issued and served, the relevant accounting officer bears a statutory duty to satisfy the decree. It is therefore my finding that mandamus is, in principle, available to the applicants.
2. On whether the applicants have met the threshold
The respondents relied on the decision in Republic vs. Principal Secretary, Ministry of Internal Security & Another ex parte Schon Noorani & Another [2018] eKLR , where the court set out eight mandatory requirements for mandamus, including: a public legal duty owed, a clear right to its performance, satisfaction of conditions precedent, prior demand, refusal or neglect, absence of alternative remedy, and no equitable bar. In the present case, I note that the Applicants established that: - Judgment was delivered on in their favour on 28 th July 2021.
Costs were taxed and a Certificate of Order Against the Government issued on 25 th April 2024.
Service of the decree and certificate was effected by 2 nd May 2024.
A demand letter was issued on 29 th April 2024.
The respondents argued that service was irregular as it was effected at the Attorney General’s Nairobi office rather than Kisii, and that the lapse of 10 days before filing the application was insufficient to constitute refusal or neglect.
While service at the proper office is a procedural requirement, this Court takes judicial notice that the Attorney General and Solicitor General are national offices with statutory responsibility under Article 156 of the Constitution and Section 21 of the Government Proceedings Act and with countrywide presence. I find that receipt of the documents in Nairobi therefore satisfied service.
On the argument of prematurity, the law does not prescribe a fixed statutory timeline after service beyond the 21 days post-judgment required for issuance of the certificate. It is my finding that once a demand is made and payment is not forthcoming, a presumption of refusal may arise. In Republic vs. Attorney General & Another ex parte Stephen Wanyee Roki [2016] eKLR , the court held that continued delay in settling a decree after proper demand justifies mandamus.
Accordingly, I find that the applicants have met the conditions for mandamus, save for the prayer for interest.
In conclusion, I am satisfied that the respondents have a statutory duty to satisfy the decree in Keroka PMCC No. 173 of 2018 . It is my finding that the applicants have complied with all procedural requirements under Section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules. The respondents’ continued failure to pay amounts to a dereliction of duty.
Orders
An order of mandamus is hereby issued compelling the Principal Secretary, Ministry of Interior and National Administration, being the relevant accounting officer, to pay the ex parte applicants the sum of Kshs. 1,917,143 together with Kshs. 227,645 as taxed costs, in compliance with the Certificate of Order Against the Government dated 25th April 2024.
Payment shall be made within ninety (90) days from the date of this judgment.
The respondents shall bear the costs of this application.
'