JUDGMENT
A. Introduction
1. This is a ruling on notice of motion dated 14.8.25 seeking judicial review orders of mandamus to compel the Respondents to satisfy a decretal sum arising from a taxed Advocate–Client Bill of Costs.
2. The Ex-Parte Applicant, Ochieng Oginga & Company Advocates, rendered legal services to the County Government of Kisii and subsequently filed an Advocate–Client Bill of Costs which was taxed by the Court.
3. By a ruling delivered on 20 November 2024, the taxing officer taxed the Bill of Costs at Kshs. 6,311,084.40.
4. Despite the issuance of a Certificate of Costs, and several demand letters issued to the Respondents, the decretal sum has not been fully settled.
5. The present proceedings were therefore instituted seeking an order of mandamus compelling the Respondents to pay the outstanding balance of Kshs. 5,000,000.
B. Background
6. The record shows that the Applicant filed an Advocate–Client Bill of Costs dated 28 May 2024.
7. The Bill arose from legal representation rendered by the Applicant to the Respondents in litigation involving Kisii County Government.
8. The taxing officer, after considering the applicable provisions of the Advocates Remuneration Order, taxed the Bill and entered judgment for the Applicant in the sum of Kshs. 6,311,084.40.
9. A Certificate of Costs was thereafter issued confirming the amount payable.
10. The evidence on record further shows that the Respondents made a partial payment of Kshs. 1,311,084, leaving an outstanding balance of approximately Kshs. 5,000,000.
11. The Applicant wrote several demand letters requesting settlement of the balance but the Respondents failed to settle the outstanding amount.
12. Aggrieved by the failure to pay the decretal sum, the Applicant instituted the present judicial review proceedings seeking an order of mandamus.
C. Issues for Determination
The issues that arise for determination are:
1. Whether the Applicant has established the legal basis for issuance of an order of mandamus.
2. Whether the Respondents have a statutory duty to satisfy the decretal sum.
3. Whether the Court should grant the orders sought.
D. Legal Principles on Mandamus
13. The law on the remedy of mandamus is well settled.
14. Mandamus is a prerogative order issued to compel the performance of a public duty imposed by law.
15. In Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR, the Court of Appeal held:
“An order of mandamus is issued to compel a public body or officer to perform a public duty imposed upon them by law where they have failed to do so.”
16. Similarly, the Court in Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR held that where a decree has been issued against Government, mandamus is the appropriate remedy to compel payment.
17. This is because execution against Government property is prohibited under Section 21(4) of the Government Proceedings Act.
18. Consequently, the only remedy available to a successful litigant against Government is to seek an order of mandamus compelling settlement a decretal sum.
E. Whether the Respondents Have a Legal Duty to Pay
19. It is not disputed that the Applicant obtained a taxed bill of costs.
20. The taxation resulted in a decretal sum of Kshs. 6,311,084.40.
21. A Certificate of Costs was issued confirming the same.
22. It is trite law that once a Certificate of Costs is issued and remains unchallenged, it becomes final and binding.
23. The Court of Appeal in Lubulellah & Associates Advocates v N.K. Brothers Ltd [2014] eKLR held that a certificate of taxation is final unless set aside.
24. The Respondents have not demonstrated that the taxation was set aside or challenged through reference.
25. Therefore, the decretal sum is lawfully due and payable.
26. The Respondents, being a County Government and its finance officer, have a statutory duty to settle lawful debts arising from court decrees.
F. Whether Mandamus Should Issue
27. The evidence before the Court demonstrates that:
• A lawful court decree exists.
• The Respondents have notice of the decree.
• Demand for payment has been made.
• The Respondents have failed to satisfy the decretal sum.
28. In Republic v Permanent Secretary Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, the Court held that where Government fails to satisfy a decree, mandamus must issue.
29. The failure by public authorities to honour court decrees undermines the rule of law and public confidence in the administration of justice.
30. Article 10 of the Constitution binds all State organs to uphold the rule of law.
31. Similarly, Article 48 guarantees the right of access to justice, which includes the right to enjoy the fruits of a judgment. A decree holder has a legitimate expectation to enjoy the fruits of his judgment .
32. The Respondents cannot ignore a lawful court decree.
33. Their failure to settle the decretal sum constitutes administrative inaction and unfairness contrary to Article 47 of the Constitution and the Fair Administrative Action Act.
G. Disposition
34. Having considered the pleadings, affidavits, and the law applicable to judicial review remedies, the Court finds that the application is meritorious.
35. The Applicant has established the legal basis for issuance of the orders of mandamus.
H. Order
36. Accordingly, the Court makes the following orders:
1. The substantive Notice of motion dated 14.8.25 is allowed .
2. An order of mandamus is hereby issued compelling the Respondents, the County Government of Kisii and the County Executive Officer in charge of Finance, to pay the Ex-Parte Applicant the sum of Kshs. 5,000,000.4 being the outstanding balance of the taxed costs.
3. The said sum shall be paid within fourteen (45) days from the date of this judgment.
4. The Respondents shall bear the costs of this application.
T.A ODERA
JUDGE
4.3.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 4TH DAY OF MARCH 2026 IN THR PRESENCE OF MR OCHIENG OGINGA FOR THE APPLICANT , N/A FOR RESPODENT & CA MR KIPCHIRCHIR
A. Introduction
1. This is a ruling on notice of motion dated 14.8.25 seeking judicial review orders of mandamus to compel the Respondents to satisfy a decretal sum arising from a taxed Advocate–Client Bill of Costs.
2. The Ex-Parte Applicant, Ochieng Oginga & Company Advocates, rendered legal services to the County Government of Kisii and subsequently filed an Advocate–Client Bill of Costs which was taxed by the Court.
3. By a ruling delivered on 20 November 2024, the taxing officer taxed the Bill of Costs at Kshs. 6,311,084.40.
4. Despite the issuance of a Certificate of Costs, and several demand letters issued to the Respondents, the decretal sum has not been fully settled.
5. The present proceedings were therefore instituted seeking an order of mandamus compelling the Respondents to pay the outstanding balance of Kshs. 5,000,000.
B. Background
6. The record shows that the Applicant filed an Advocate–Client Bill of Costs dated 28 May 2024.
7. The Bill arose from legal representation rendered by the Applicant to the Respondents in litigation involving Kisii County Government.
8. The taxing officer, after considering the applicable provisions of the Advocates Remuneration Order, taxed the Bill and entered judgment for the Applicant in the sum of Kshs. 6,311,084.40.
9. A Certificate of Costs was thereafter issued confirming the amount payable.
10. The evidence on record further shows that the Respondents made a partial payment of Kshs. 1,311,084, leaving an outstanding balance of approximately Kshs. 5,000,000.
11. The Applicant wrote several demand letters requesting settlement of the balance but the Respondents failed to settle the outstanding amount.
12. Aggrieved by the failure to pay the decretal sum, the Applicant instituted the present judicial review proceedings seeking an order of mandamus.
C. Issues for Determination
The issues that arise for determination are:
1. Whether the Applicant has established the legal basis for issuance of an order of mandamus.
2. Whether the Respondents have a statutory duty to satisfy the decretal sum.
3. Whether the Court should grant the orders sought.
D. Legal Principles on Mandamus
13. The law on the remedy of mandamus is well settled.
14. Mandamus is a prerogative order issued to compel the performance of a public duty imposed by law.
15. In Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR, the Court of Appeal held:
“An order of mandamus is issued to compel a public body or officer to perform a public duty imposed upon them by law where they have failed to do so.”
16. Similarly, the Court in Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR held that where a decree has been issued against Government, mandamus is the appropriate remedy to compel payment.
17. This is because execution against Government property is prohibited under Section 21(4) of the Government Proceedings Act.
18. Consequently, the only remedy available to a successful litigant against Government is to seek an order of mandamus compelling settlement a decretal sum.
E. Whether the Respondents Have a Legal Duty to Pay
19. It is not disputed that the Applicant obtained a taxed bill of costs.
20. The taxation resulted in a decretal sum of Kshs. 6,311,084.40.
21. A Certificate of Costs was issued confirming the same.
22. It is trite law that once a Certificate of Costs is issued and remains unchallenged, it becomes final and binding.
23. The Court of Appeal in Lubulellah & Associates Advocates v N.K. Brothers Ltd [2014] eKLR held that a certificate of taxation is final unless set aside.
24. The Respondents have not demonstrated that the taxation was set aside or challenged through reference.
25. Therefore, the decretal sum is lawfully due and payable.
26. The Respondents, being a County Government and its finance officer, have a statutory duty to settle lawful debts arising from court decrees.
F. Whether Mandamus Should Issue
27. The evidence before the Court demonstrates that:
• A lawful court decree exists.
• The Respondents have notice of the decree.
• Demand for payment has been made.
• The Respondents have failed to satisfy the decretal sum.
28. In Republic v Permanent Secretary Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, the Court held that where Government fails to satisfy a decree, mandamus must issue.
29. The failure by public authorities to honour court decrees undermines the rule of law and public confidence in the administration of justice.
30. Article 10 of the Constitution binds all State organs to uphold the rule of law.
31. Similarly, Article 48 guarantees the right of access to justice, which includes the right to enjoy the fruits of a judgment. A decree holder has a legitimate expectation to enjoy the fruits of his judgment .
32. The Respondents cannot ignore a lawful court decree.
33. Their failure to settle the decretal sum constitutes administrative inaction and unfairness contrary to Article 47 of the Constitution and the Fair Administrative Action Act.
G. Disposition
34. Having considered the pleadings, affidavits, and the law applicable to judicial review remedies, the Court finds that the application is meritorious.
35. The Applicant has established the legal basis for issuance of the orders of mandamus.
H. Order
36. Accordingly, the Court makes the following orders:
1. The substantive Notice of motion dated 14.8.25 is allowed .
2. An order of mandamus is hereby issued compelling the Respondents, the County Government of Kisii and the County Executive Officer in charge of Finance, to pay the Ex-Parte Applicant the sum of Kshs. 5,000,000.4 being the outstanding balance of the taxed costs.
3. The said sum shall be paid within fourteen (45) days from the date of this judgment.
4. The Respondents shall bear the costs of this application.
T.A ODERA
JUDGE
4.3.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 4TH DAY OF MARCH 2026 IN THR PRESENCE OF MR OCHIENG OGINGA FOR THE APPLICANT , N/A FOR RESPODENT & CA MR KIPCHIRCHIR