1. The application that is before this court for determination is the one dated 9th September 2025 wherein the applicant is seeking the following orders Orders:
1. THAT the Honourable Court be pleased to CERTIFY this
Application as urgent and the same be heard ex parte in the first instance (spent).
2. THAT the Honourable Court be pleased to issue a writ of mandamus compelling the Managing Director of the Kenya Broadcasting Corporationto pay the Applicants forthwith and without delay, decretal sum with interest thereon and Costs as ordered in the Judgment, Decree in Nairobi High Court Commercial Cause No 686 & 687 (consolidated) of 2009 Optima Sports Management International (UK) Limited & Optima Sports Management (Nigeria) Limited vs. Kenya Broadcasting Corporation as particularized below:
a) The sums of Euro 50,000.00 and the sum of Euro 70,000.00 totaling an aggregate sum of Euro 120,000.00.
b) The interest at 14% from the 14th September 2008 on the sums of Euro 30,000.00 and on Euro 50,000.00 summing to Euro 80,000.00 on reducing balance till payment in full.
c) The interest at 14% from the 19th December 2008 on the sums of Euro 20,000.00 and on Euro 20,000.00 summing to Euro 40,000.00 on reducing balance till payment in full.
d) The Costs of Kshs 923,957.00 with interest thereon from the 6th May 2021, being the date of the taxation of the Costs till payment in full.
3. THAT the sum of Kshs 5 million paid by the Kenya Broadcasting Corporation into Court in the Commercial Cause and ordered to be released to the Applicants be deducted from the decretal sum, interest accrued, and the Costs awarded in Nairobi High Court Commercial Cause No 686 & 687 (consolidated) of 2009.
4. THAT the Honourable Court be pleased to make such further Orders as are necessary for the ends of justice.
5 THAT the Respondent be condemned to pay the Costs of this Application and any ensuing proceedings in any event.
The applicants’ case;
2. The applicants have advanced their case through the affidavit of Andrew Howes, a Director and an Officer of the Applicants.
3. It is the applicants’ case that on the 6th February 2020, the Honourable Court in Nairobi High Court Commercial Cause No 686 and 687 of 2009 as consolidated, delivered its judgment in favour of the Applicant against the Kenya Broadcasting Corporation for a total sum of Euro 120,000.00 and interest on the judgment sum running from the year 2008 and as the Costs of the suits.
4. The Applicants then proceeded to, extract the Decree arising from the Judgment for purposes of enforcing the same.
5. Costs awarded to the Applicants herein were assessed Kshs 927,957.00 by the Honourable Court in line with the Certificate of Costs dated 25th June 2021 for the sum of Kshs 923,957.00.
6. It is their case that The Decree and the Certificate of Costs were served upon the Respondent herein and copied to the Corporation Secretary of KBC on 21st July 2021.
7. It is the applicants’ case that KBC sought leave to appeal out of time and for a stay of execution of the Judgment pending hearing and determination of the appeal.
8. Upon being granted interim orders of stay pending hearing and determination of the application, KBC went to sleep prompting the Applicants to move the Court seeking the setting aside of the interim orders of stay according to the Applicants..
9. The Honourable Court imposed extended the stay pending hearing and determination of the KBC's application on condition that KBC deposits Kshs 5 million in Court.
10. It is the Applicant’s case that after the hearing of the substantive Application seeking stay of execution pending Appeal, a Ruling was delivered on the 30th March 2023,wherein KBC was granted a conditional stay pending appeal, on condition inter alia that KBC do furnish a bank guarantee in favour of the ex parte Applicants for a sum of Kshs 30million.
11. KBC did not meet this condition and later moved the Court to reduce the amount to be guaranteed and by a Ruling delivered on the 16th June 2023, the Honourable Court reduced the sum to be guaranteed to Kshs 10million and directed that the guarantee be furnished within 60 days of the date of the Ruling.
12. Despite the reduction of the guaranteed amount to Kshs 10million vide the Ruling of the 16h June 2023, KBC did not furnish the Bank Guarantee within the 60 days or at all.
13. The Applicants argue that the Respondent was served with the Decree and Certificate of Costs vide an email of the 28th May 2024 and physical service of the on the 29th May 2024 along with a letter notifying the Respondent that the ex parte Applications would be commencing these proceedings.
14. It is upon the lapse of the stay Orders, that the ex parte Applicants moved the Commercial Court seeking the release of the sum of Kshs million deposited in Court by KBC.
The Applicants’ submissions;
15. They submit that the Respondent lodged Grounds of Opposition dated the 11thNovember 2025. Outside the time delineated by the Court on the 25th November 2025, the Respondent purported to file and serve a Replying Affidavit of Agnes Kalekye Nguna, Managing Director of the Kenya Broadcasting Corporation (herein referred to as KBC), sworn on the 25th November 2025, but filed and served on the 2nd December 2025.
16. The Honourable Court vide its Orders of the 25th November 2025 directed that both the Applications and the Respondent’s do abide by the timelines of the Court Orders of the 1st October 2025.
17. The plain reading of the Applicant’s Application and the response filed by the Respondent confirms that the material facts as set out by the Applicants in the Application dated 9th September 2025 are not in dispute.
18. By a Judgment of the Court in Nairobi High Court Commercial Cause No 686 and 687 (consolidated) delivered on the 6thFebruary 2020, the Court delivered Judgment in favour of the Applicants against the Kenya Broadcasting Corporation, herein referred to as KBC,
19. The Applicants were also awarded Costs which were taxed at Kshs 923,957.00.
20. The Respondent as the Managing Director of KBC has been aware of the Judgment as far back as November 2020 because vide an application dated 11th November 2020 brought by KBC KBC sought various orders in respect of the Judgment including stay pending appeal.
21. The conditions subject to which the stay was granted were not complied with and stay orders lapsed. The Respondent has also been aware of the taxed Costs as far back as July 2021.
22. The Respondent’s sole response to the Application seems to be that KBC has not made provision for the payment of the judgment in the current financial year and KBC cannot pay the judgment sum as a result.
23. They submit that there is nothing in the response of the Respondent that explains why the Respondent has never made any effort to settle the judgment sums for the last 5 years, whether or not that entails the Respondent seeking monies from the exchequer. There is no law that has been cited by the Respondent that suggests that judgment sums are to be paid at the convenience of the Respondent’s budgetary allocation, especially for a Respondent who has absolutely no effort to comply with the orders of the Court by settling the judgment of the Court for the last 5 years.
24. The Respondent does not deny that (s)he owes the duty of settling the judgment sum adverted to in the Applicant’s Application; the Respondent admits that KBC that KBC ‘…being a state corporation established under an act of parliament is infused with governmental character…’ confirming that her role as the Managing Director of KBC is a public duty.
25. They submit that the plain reading of the Respondent’s Replying Affidavit is that she only attempts to explain why she cannot settle the judgment sum, which KBC and by extension the Respondent have been aware of for the past 5 years. By necessary implication therefore, the Respondent admits that her conduct is a violation of the Constitution as read with the Fair Administrative Actions Act.
26. In advancing the argument Whether the Respondent owes the Applicants a duty of administrative action they submit that
Notwithstanding anything to the contrary in any law
(a) where any judgment or order has been obtained against the Corporation, no execution or attachment or process in the nature thereof shall be issued against the Corporation or against any property of the Corporation; but the Managing Director shall, without delay, cause to be paid out of the revenue of the Corporation such amounts as may by thejudgment or order, be awarded against the Corporation. (emphasis added).
27. The plain reading and interpretation of the statutory provision above confirms that whilst KBC enjoys statutory immunity from execution, the Respondent has the public duty or enjoined to perform administrative action of ensuring that the judgment creditors are paid.
28. The Fair Administrative Actions Act 2015, enacted pursuant to Article 47(3) of the Constitution, defines administrative action inter alia as follows:
“Administrative action includes
(i) the powers, functions and duties exercised byauthorities or quasi-judicial tribunals; or
(ii) any act or omission or decision of any person, body or authority that affects the rights or interests of any person to whom such action relates. (emphasis added)
29. The Fair Administrative Actions Act 2015 at section 7(2)(j) confers upon the Court the powers to review administrative action in inter alia the following circumstances
‘…..there has been abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law….’
30. The plain reading and interpretation of the statutory provision above however demonstrates that the statutory immunity enjoyed by KBC also comes with a legal responsibility and public duty upon Managing Director of the Corporation ( who is the Respondent herein) to cause to be paid, without delay, any judgment sums awarded against KBC. The inclusion of the words without delay in the was intentional and deliberate to ensure there responsible use of the immunity afforded by the statute.
31. The wording above is substantially similar to that found at Article 47 of the Constitution; the said Article provides:
47(1) Every person has the right to administrative action that is expeditious, efficient, reasonable and procedurally fair. (emphasis added).
32. In the Supreme Court of Kenya decision in National Rainbow Coalition of Kenya vs. Independent Electoral & Boundaries Commission & Others [2022] KESC 6, the Court explaining the role of the order of mandamus stated thus at para 33:
33. An order of mandamus, as was held in the case of Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform to the detriment of a party who has a legal right to expect the duty to be performed. (Emphasis added)
34. They submit that the totality of the foregoing confirms that the Respondent owes the Applicant an administrative action as a public conferred by statute; we further submit for the Applicants that duty conferred upon the Respondent, if not performed can be compelled by an order of mandamus as sought by the Applicants herein.
35. The applicants then advance their submissions in the issue whether the Respondent can hide behind the Budgetary Processes of KBC to explain her failure to perform the public duty.
36. The Respondent does not deny that there is a judgment and decree against KBC; she does not deny that KBC was aware of the judgment in the year 2020 and she does not deny that it is her obligation to ensure that the judgment sums awarded and the costs are settled.
37. They submit that The Respondent’s sole answer to the Application is an explanation that the judgment sums have not been included in the financial estimates for the current year by KBC and therefore cannot be settled of the Replying Affidavit). With respect to the Respondent, the response filed is not only an insult to the Court that rendered the judgment, but it is an utter absurdity.
38. The Applicant has demonstrated at pages 30-31 of the Application that KBC vide an application dated 11th November 2020, sought stay of execution and decree of the in question, that KBC did not comply with the condition of the stay and the stay lapsed and as result, the same became payable.
39. The Applicant has demonstrated that vide an email of the 21st July 2021 that the Respondent was served with the Decree and Certificate of Costs.
40. The Applicant has also demonstrated that vide a letter dated 28th May 2024, the Respondent was served yet again with Decree and Certificate of Costs.
41. They submit that the Respondent has mischievously taken the view and has assumed that her obligation to pay the judgment sum only arises after she has been served with a Certificate of Order.
42. The requirement of a Certificate of Order only applies to proceedings against the Government within the Government Proceedings Act (section 21 thereof) and is not applicable to proceedings against KBC as set out in the Kenya Broadcasting Corporation Act; a certificate of order is not a requirement against a state corporation such as KBC. The Applicant needed only to serve the Decree and Certificate of Costs which have been duly served.
43. In the High Court of Kenya at Machakos in The Republic vs. Salaries & Remuneration Commission ex parte Sollo Nzuki[2020] KEHC 1074, the Hon Justice G. V. Odunga stated thus at para 20:
In High Court Judicial Review Misc Application No 44 of 2012, between The Republic vs. James Alfred Koroso, this Court expressed itself as hereunder:
‘…..In the present case, the ex parte applicant has no other option of realizing the fruits of his judgment since he is barred from executing against the government. Apart from mandamus, he has no option of ensuring that the judgment he has been awarded is realized…Access to justice cannot be said to have been ensured (by Article 48 of theConstitution), when the persons in whose favourjudgments have been decreed by Courts of competent jurisdiction cannot enjoy the fruits of their judgments due to roadblocks or inaction by public officers…..’
44. In the same decision, that is High Court of Kenya at Machakos in The Republic vs. Salaries & Renumeration Commission ex parte Sollo Nzuki [2020] KEHC 1074, the Hon Justice G. V. Odunga stated thus at para 17:
Dealing with the same provisions, Githua J The Republic vs. Ministry for State for Provincial Administration & Internal Security, ex parte Fredrick Manoah Egunza [2012] eKLR, expressed herself as follows:
‘…..Once a certificate of order against the Government is served on the Attorney General, section 21(3) imposes 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 lawfullyaccruing thereon. This provision does not conditionpayment to budgetary allocation and parliamentaryapproval of Government expenditure in the financial year subsequent to which government liability accrues…..’ (emphasis ours).
45. They submit that the upshot of the foregoing judicial and statutory authorities that obligation upon the Respondent to pay the Applicants the judgment sums must be discharged without delay, that the administrative action must be expeditious and efficient. Any inaction and delay, as has been the conduct of the Respondent, constitutes a violation of the Applicant’s rights that invites the intervention of the Honourable Court as sought by the Applicants herein.
46. KBC not being the Government, cannot hide behind the cloak of certificate of order provided for under the Government Proceedings Act. There is no requirement that the Respondent be served with a certificate of order.
47. It also incontrovertible that payment of the judgment sums by the Respondent should await its internal budgetary allocation and parliamentary approval; such an absurd persuasion means that the judgments get settled at the convenience of the Respondent, yet as a function of justice, judgments must be settled as required by law and not at the election of the judgment debtor.
48. Even if the Respondent were to seek the sympathy of the Court regarding its financial quandary, the Respondent having been aware of the judgment in the year 2020, nothing prevented KBC and by extension the Respondent from presenting seeking supplementary budgetary requests immediately the judgment was delivered or for the past 5 years.
The Respondents case;
49. In the grounds of opposition dated the 11thNovember 2025,The respondent argues that
50. The application is premature, runs contra to the express provision of section 47 (a) and (b) of the Kenya Broadcasting Corporate Act.
51. The Judgment sums sought by the Applicant can only be paid out of the revenue of the Respondent,
52. The Respondent has not generated any revenue for the same to be paid out to the Applicants considering the amounts involved which are very colossal.
53. The respondent further opposes the application through the replying affidavit of AGNES KALEKYE NGUNA the Managing Director of Kenya Broadcasting Corporation.
54. It is her case that the Application is premature, untenable, runs contrary to the express provisions of section 11, 42 and 47 (a) of the Kenya Broadcasting Corporation Act and should be dismissed with costs.
55. It is argued that the Respondent being a State Corporation established under an Act of Parliament is infused with governmental character and as such the mode of execution to be adopted ought to be in accordance with the provisions of the Government Proceedings Act.
56. The Respondent argues that under section 42(3) of the Kenya Broadcasting Corporation Act for annual estimates of the Respondent to approved by the Board before the commencement of the financial year to which they relate, and for the same to be submitted to the Cabinet Secretary for approval and after which the Board cannot increase any sum provided in the estimates without the consent of the Cabinet Secretary.
57. It is The Respondent's case that the decretal amounts arising from the decision in Nairobi High Court Commercial Causes number 686 and 687 of 2009 which are subject of these Mandamus proceedings were not factored in the current financial year as the Certificate of Costs & Certificate of Order against government were only served on the Respondent after it had already submitted its annual estimates for the current financial year.
58. The Respondent argues that the financial year of the Corporation is for a period of twelve months commencing on the Ist July and ends on the 30th June in the next succeeding year.
59. She further argues that under section 42(4) of the Kenya Broadcasting Corporation Act no expenditure can be incurred for the purposes of the Respondent except in accordance with the annual estimates approved or in pursuance of an authorization of the Board given with the prior approval of the Cabinet Secretary.
60. The Respondent argues that the decretal amounts in Nairobi High Court Commercial Causes number 686 and 687 of 2009 do not form part of annual estimates of the current financial year according to her.
61. Section 47 (a) only mandates the payment of judgment and/or order against the Respondent from the Respondent's revenues.
62. It is further The Respondent’s case that the Respondent has not generated any revenue for the same to be paid out to the Applicants as seen in the copy of the Respondent's financial statement.
Analysis and determination;
63. The issues for determination are:
1) Whether the application has merit.
2) Who shall bear the costs.
Whether the application has merit.
64. The Respondent being a State Corporation is established under an Act of Parliament is infused with governmental character and as such the mode of execution to be adopted ought to be in accordance with the provisions of the Government Proceedings Act.
65. Before an order of mandamus is issued against the Respondent, the Applicant must therefore abide by the procedure in Section 21 of Government Proceedings Act which provides:
“(1) 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.”
66. Section 21 (3) of the said Act on the other hand provides:
“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.”
67. In the case of Republic v Attorney General Ex partes Miriam Wairimu Wambugu & another [2021] eKLR the learned Judge placed reliance on the holding in Republic vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) where Githua J. held 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 27 (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."
68. Judgment was entered on 6th February 2020 in High Court Commercial Cause No 686 and 687 of 2009 as consolidated in favour of the Applicants against the Kenya Broadcasting Corporation for a total sum of Euro 120,000.00 and interest on the judgment sum running from the year 2008 and as the Costs of the suits.
69. The Applicants herein, extracted the Decree arising from the Judgment for purposes of enforcing the same.
70. Costs awarded to the Applicants herein as the Plaintiffs therein were assessed Kshs 927,957.00 by the Honourable Court in line with the Certificate of Costs dated 25th June 2021 for the sum of Kshs 923,957.00.
71. The Decree and the Certificate of Costs were served upon KBC through the Respondent herein and copied to the Corporation Secretary of KBC on 21st July 2021.
72. This is not enough. The applicants should have gone a step further to extract and serve a certificate of order against the Government upon the respondents. The Applicants did not do that.
73. The Applicants have confirmed this position in the authority that they relied on in their submissions being in the same decision, that is High Court of Kenya at Machakos in The Republic vs. Salaries & Renumeration Commission ex parte Sollo Nzuki [2020] KEHC 1074, the Hon Justice G. V. Odunga stated thus at para 17:
Dealing with the same provisions, Githua J The Republic vs. Ministry for State for Provincial Administration & Internal Security, ex parte Fredrick Manoah Egunza [2012] eKLR, expressed herself as follows:
‘…..Once a certificate of order against the Government is served on the Attorney General, section 21(3) imposes 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. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which government liability accrues…..’ (emphasis ours).
74. Once the certificate of order against the Government is served upon 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.
75. This Court persuaded by the decision in Republic vs KBC ex parte Musakari Kombo [2018] eKLR will rule that the applicant ought to have moved the Court as was discussed in that case and in line with Section 21 of the Government Proceedings Act.
76. The applicants have not complied with Section 21 of Government Proceedings Act in that they did not extract nor serve a certificate of order against the judgment as a result of which the application is prematurely before the court and I so hold.
Costs:
77. In Party of Independent Candidates of Kenya versus Mutula Kilonzo a 2 others HC EP No. 6 of 2013, the court stated as follows on the issue of costs:
"It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial judge is given discretion But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, is a rule which should not be departed from without the demonstration of good grounds for doing so. "
78. The Respondent is entitled to costs.
Determination:
79. The applicants have not made out a case for the grant of the orders sought given that they have not complied with Section 21 of Government Proceedings Act.
Order:
The application is struck out with cost.
1. THAT the Honourable Court be pleased to CERTIFY this
Application as urgent and the same be heard ex parte in the first instance (spent).
2. THAT the Honourable Court be pleased to issue a writ of mandamus compelling the Managing Director of the Kenya Broadcasting Corporationto pay the Applicants forthwith and without delay, decretal sum with interest thereon and Costs as ordered in the Judgment, Decree in Nairobi High Court Commercial Cause No 686 & 687 (consolidated) of 2009 Optima Sports Management International (UK) Limited & Optima Sports Management (Nigeria) Limited vs. Kenya Broadcasting Corporation as particularized below:
a) The sums of Euro 50,000.00 and the sum of Euro 70,000.00 totaling an aggregate sum of Euro 120,000.00.
b) The interest at 14% from the 14th September 2008 on the sums of Euro 30,000.00 and on Euro 50,000.00 summing to Euro 80,000.00 on reducing balance till payment in full.
c) The interest at 14% from the 19th December 2008 on the sums of Euro 20,000.00 and on Euro 20,000.00 summing to Euro 40,000.00 on reducing balance till payment in full.
d) The Costs of Kshs 923,957.00 with interest thereon from the 6th May 2021, being the date of the taxation of the Costs till payment in full.
3. THAT the sum of Kshs 5 million paid by the Kenya Broadcasting Corporation into Court in the Commercial Cause and ordered to be released to the Applicants be deducted from the decretal sum, interest accrued, and the Costs awarded in Nairobi High Court Commercial Cause No 686 & 687 (consolidated) of 2009.
4. THAT the Honourable Court be pleased to make such further Orders as are necessary for the ends of justice.
5 THAT the Respondent be condemned to pay the Costs of this Application and any ensuing proceedings in any event.
The applicants’ case;
2. The applicants have advanced their case through the affidavit of Andrew Howes, a Director and an Officer of the Applicants.
3. It is the applicants’ case that on the 6th February 2020, the Honourable Court in Nairobi High Court Commercial Cause No 686 and 687 of 2009 as consolidated, delivered its judgment in favour of the Applicant against the Kenya Broadcasting Corporation for a total sum of Euro 120,000.00 and interest on the judgment sum running from the year 2008 and as the Costs of the suits.
4. The Applicants then proceeded to, extract the Decree arising from the Judgment for purposes of enforcing the same.
5. Costs awarded to the Applicants herein were assessed Kshs 927,957.00 by the Honourable Court in line with the Certificate of Costs dated 25th June 2021 for the sum of Kshs 923,957.00.
6. It is their case that The Decree and the Certificate of Costs were served upon the Respondent herein and copied to the Corporation Secretary of KBC on 21st July 2021.
7. It is the applicants’ case that KBC sought leave to appeal out of time and for a stay of execution of the Judgment pending hearing and determination of the appeal.
8. Upon being granted interim orders of stay pending hearing and determination of the application, KBC went to sleep prompting the Applicants to move the Court seeking the setting aside of the interim orders of stay according to the Applicants..
9. The Honourable Court imposed extended the stay pending hearing and determination of the KBC's application on condition that KBC deposits Kshs 5 million in Court.
10. It is the Applicant’s case that after the hearing of the substantive Application seeking stay of execution pending Appeal, a Ruling was delivered on the 30th March 2023,wherein KBC was granted a conditional stay pending appeal, on condition inter alia that KBC do furnish a bank guarantee in favour of the ex parte Applicants for a sum of Kshs 30million.
11. KBC did not meet this condition and later moved the Court to reduce the amount to be guaranteed and by a Ruling delivered on the 16th June 2023, the Honourable Court reduced the sum to be guaranteed to Kshs 10million and directed that the guarantee be furnished within 60 days of the date of the Ruling.
12. Despite the reduction of the guaranteed amount to Kshs 10million vide the Ruling of the 16h June 2023, KBC did not furnish the Bank Guarantee within the 60 days or at all.
13. The Applicants argue that the Respondent was served with the Decree and Certificate of Costs vide an email of the 28th May 2024 and physical service of the on the 29th May 2024 along with a letter notifying the Respondent that the ex parte Applications would be commencing these proceedings.
14. It is upon the lapse of the stay Orders, that the ex parte Applicants moved the Commercial Court seeking the release of the sum of Kshs million deposited in Court by KBC.
The Applicants’ submissions;
15. They submit that the Respondent lodged Grounds of Opposition dated the 11thNovember 2025. Outside the time delineated by the Court on the 25th November 2025, the Respondent purported to file and serve a Replying Affidavit of Agnes Kalekye Nguna, Managing Director of the Kenya Broadcasting Corporation (herein referred to as KBC), sworn on the 25th November 2025, but filed and served on the 2nd December 2025.
16. The Honourable Court vide its Orders of the 25th November 2025 directed that both the Applications and the Respondent’s do abide by the timelines of the Court Orders of the 1st October 2025.
17. The plain reading of the Applicant’s Application and the response filed by the Respondent confirms that the material facts as set out by the Applicants in the Application dated 9th September 2025 are not in dispute.
18. By a Judgment of the Court in Nairobi High Court Commercial Cause No 686 and 687 (consolidated) delivered on the 6thFebruary 2020, the Court delivered Judgment in favour of the Applicants against the Kenya Broadcasting Corporation, herein referred to as KBC,
19. The Applicants were also awarded Costs which were taxed at Kshs 923,957.00.
20. The Respondent as the Managing Director of KBC has been aware of the Judgment as far back as November 2020 because vide an application dated 11th November 2020 brought by KBC KBC sought various orders in respect of the Judgment including stay pending appeal.
21. The conditions subject to which the stay was granted were not complied with and stay orders lapsed. The Respondent has also been aware of the taxed Costs as far back as July 2021.
22. The Respondent’s sole response to the Application seems to be that KBC has not made provision for the payment of the judgment in the current financial year and KBC cannot pay the judgment sum as a result.
23. They submit that there is nothing in the response of the Respondent that explains why the Respondent has never made any effort to settle the judgment sums for the last 5 years, whether or not that entails the Respondent seeking monies from the exchequer. There is no law that has been cited by the Respondent that suggests that judgment sums are to be paid at the convenience of the Respondent’s budgetary allocation, especially for a Respondent who has absolutely no effort to comply with the orders of the Court by settling the judgment of the Court for the last 5 years.
24. The Respondent does not deny that (s)he owes the duty of settling the judgment sum adverted to in the Applicant’s Application; the Respondent admits that KBC that KBC ‘…being a state corporation established under an act of parliament is infused with governmental character…’ confirming that her role as the Managing Director of KBC is a public duty.
25. They submit that the plain reading of the Respondent’s Replying Affidavit is that she only attempts to explain why she cannot settle the judgment sum, which KBC and by extension the Respondent have been aware of for the past 5 years. By necessary implication therefore, the Respondent admits that her conduct is a violation of the Constitution as read with the Fair Administrative Actions Act.
26. In advancing the argument Whether the Respondent owes the Applicants a duty of administrative action they submit that
Notwithstanding anything to the contrary in any law
(a) where any judgment or order has been obtained against the Corporation, no execution or attachment or process in the nature thereof shall be issued against the Corporation or against any property of the Corporation; but the Managing Director shall, without delay, cause to be paid out of the revenue of the Corporation such amounts as may by thejudgment or order, be awarded against the Corporation. (emphasis added).
27. The plain reading and interpretation of the statutory provision above confirms that whilst KBC enjoys statutory immunity from execution, the Respondent has the public duty or enjoined to perform administrative action of ensuring that the judgment creditors are paid.
28. The Fair Administrative Actions Act 2015, enacted pursuant to Article 47(3) of the Constitution, defines administrative action inter alia as follows:
“Administrative action includes
(i) the powers, functions and duties exercised byauthorities or quasi-judicial tribunals; or
(ii) any act or omission or decision of any person, body or authority that affects the rights or interests of any person to whom such action relates. (emphasis added)
29. The Fair Administrative Actions Act 2015 at section 7(2)(j) confers upon the Court the powers to review administrative action in inter alia the following circumstances
‘…..there has been abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law….’
30. The plain reading and interpretation of the statutory provision above however demonstrates that the statutory immunity enjoyed by KBC also comes with a legal responsibility and public duty upon Managing Director of the Corporation ( who is the Respondent herein) to cause to be paid, without delay, any judgment sums awarded against KBC. The inclusion of the words without delay in the was intentional and deliberate to ensure there responsible use of the immunity afforded by the statute.
31. The wording above is substantially similar to that found at Article 47 of the Constitution; the said Article provides:
47(1) Every person has the right to administrative action that is expeditious, efficient, reasonable and procedurally fair. (emphasis added).
32. In the Supreme Court of Kenya decision in National Rainbow Coalition of Kenya vs. Independent Electoral & Boundaries Commission & Others [2022] KESC 6, the Court explaining the role of the order of mandamus stated thus at para 33:
33. An order of mandamus, as was held in the case of Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform to the detriment of a party who has a legal right to expect the duty to be performed. (Emphasis added)
34. They submit that the totality of the foregoing confirms that the Respondent owes the Applicant an administrative action as a public conferred by statute; we further submit for the Applicants that duty conferred upon the Respondent, if not performed can be compelled by an order of mandamus as sought by the Applicants herein.
35. The applicants then advance their submissions in the issue whether the Respondent can hide behind the Budgetary Processes of KBC to explain her failure to perform the public duty.
36. The Respondent does not deny that there is a judgment and decree against KBC; she does not deny that KBC was aware of the judgment in the year 2020 and she does not deny that it is her obligation to ensure that the judgment sums awarded and the costs are settled.
37. They submit that The Respondent’s sole answer to the Application is an explanation that the judgment sums have not been included in the financial estimates for the current year by KBC and therefore cannot be settled of the Replying Affidavit). With respect to the Respondent, the response filed is not only an insult to the Court that rendered the judgment, but it is an utter absurdity.
38. The Applicant has demonstrated at pages 30-31 of the Application that KBC vide an application dated 11th November 2020, sought stay of execution and decree of the in question, that KBC did not comply with the condition of the stay and the stay lapsed and as result, the same became payable.
39. The Applicant has demonstrated that vide an email of the 21st July 2021 that the Respondent was served with the Decree and Certificate of Costs.
40. The Applicant has also demonstrated that vide a letter dated 28th May 2024, the Respondent was served yet again with Decree and Certificate of Costs.
41. They submit that the Respondent has mischievously taken the view and has assumed that her obligation to pay the judgment sum only arises after she has been served with a Certificate of Order.
42. The requirement of a Certificate of Order only applies to proceedings against the Government within the Government Proceedings Act (section 21 thereof) and is not applicable to proceedings against KBC as set out in the Kenya Broadcasting Corporation Act; a certificate of order is not a requirement against a state corporation such as KBC. The Applicant needed only to serve the Decree and Certificate of Costs which have been duly served.
43. In the High Court of Kenya at Machakos in The Republic vs. Salaries & Remuneration Commission ex parte Sollo Nzuki[2020] KEHC 1074, the Hon Justice G. V. Odunga stated thus at para 20:
In High Court Judicial Review Misc Application No 44 of 2012, between The Republic vs. James Alfred Koroso, this Court expressed itself as hereunder:
‘…..In the present case, the ex parte applicant has no other option of realizing the fruits of his judgment since he is barred from executing against the government. Apart from mandamus, he has no option of ensuring that the judgment he has been awarded is realized…Access to justice cannot be said to have been ensured (by Article 48 of theConstitution), when the persons in whose favourjudgments have been decreed by Courts of competent jurisdiction cannot enjoy the fruits of their judgments due to roadblocks or inaction by public officers…..’
44. In the same decision, that is High Court of Kenya at Machakos in The Republic vs. Salaries & Renumeration Commission ex parte Sollo Nzuki [2020] KEHC 1074, the Hon Justice G. V. Odunga stated thus at para 17:
Dealing with the same provisions, Githua J The Republic vs. Ministry for State for Provincial Administration & Internal Security, ex parte Fredrick Manoah Egunza [2012] eKLR, expressed herself as follows:
‘…..Once a certificate of order against the Government is served on the Attorney General, section 21(3) imposes 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 lawfullyaccruing thereon. This provision does not conditionpayment to budgetary allocation and parliamentaryapproval of Government expenditure in the financial year subsequent to which government liability accrues…..’ (emphasis ours).
45. They submit that the upshot of the foregoing judicial and statutory authorities that obligation upon the Respondent to pay the Applicants the judgment sums must be discharged without delay, that the administrative action must be expeditious and efficient. Any inaction and delay, as has been the conduct of the Respondent, constitutes a violation of the Applicant’s rights that invites the intervention of the Honourable Court as sought by the Applicants herein.
46. KBC not being the Government, cannot hide behind the cloak of certificate of order provided for under the Government Proceedings Act. There is no requirement that the Respondent be served with a certificate of order.
47. It also incontrovertible that payment of the judgment sums by the Respondent should await its internal budgetary allocation and parliamentary approval; such an absurd persuasion means that the judgments get settled at the convenience of the Respondent, yet as a function of justice, judgments must be settled as required by law and not at the election of the judgment debtor.
48. Even if the Respondent were to seek the sympathy of the Court regarding its financial quandary, the Respondent having been aware of the judgment in the year 2020, nothing prevented KBC and by extension the Respondent from presenting seeking supplementary budgetary requests immediately the judgment was delivered or for the past 5 years.
The Respondents case;
49. In the grounds of opposition dated the 11thNovember 2025,The respondent argues that
50. The application is premature, runs contra to the express provision of section 47 (a) and (b) of the Kenya Broadcasting Corporate Act.
51. The Judgment sums sought by the Applicant can only be paid out of the revenue of the Respondent,
52. The Respondent has not generated any revenue for the same to be paid out to the Applicants considering the amounts involved which are very colossal.
53. The respondent further opposes the application through the replying affidavit of AGNES KALEKYE NGUNA the Managing Director of Kenya Broadcasting Corporation.
54. It is her case that the Application is premature, untenable, runs contrary to the express provisions of section 11, 42 and 47 (a) of the Kenya Broadcasting Corporation Act and should be dismissed with costs.
55. It is argued that the Respondent being a State Corporation established under an Act of Parliament is infused with governmental character and as such the mode of execution to be adopted ought to be in accordance with the provisions of the Government Proceedings Act.
56. The Respondent argues that under section 42(3) of the Kenya Broadcasting Corporation Act for annual estimates of the Respondent to approved by the Board before the commencement of the financial year to which they relate, and for the same to be submitted to the Cabinet Secretary for approval and after which the Board cannot increase any sum provided in the estimates without the consent of the Cabinet Secretary.
57. It is The Respondent's case that the decretal amounts arising from the decision in Nairobi High Court Commercial Causes number 686 and 687 of 2009 which are subject of these Mandamus proceedings were not factored in the current financial year as the Certificate of Costs & Certificate of Order against government were only served on the Respondent after it had already submitted its annual estimates for the current financial year.
58. The Respondent argues that the financial year of the Corporation is for a period of twelve months commencing on the Ist July and ends on the 30th June in the next succeeding year.
59. She further argues that under section 42(4) of the Kenya Broadcasting Corporation Act no expenditure can be incurred for the purposes of the Respondent except in accordance with the annual estimates approved or in pursuance of an authorization of the Board given with the prior approval of the Cabinet Secretary.
60. The Respondent argues that the decretal amounts in Nairobi High Court Commercial Causes number 686 and 687 of 2009 do not form part of annual estimates of the current financial year according to her.
61. Section 47 (a) only mandates the payment of judgment and/or order against the Respondent from the Respondent's revenues.
62. It is further The Respondent’s case that the Respondent has not generated any revenue for the same to be paid out to the Applicants as seen in the copy of the Respondent's financial statement.
Analysis and determination;
63. The issues for determination are:
1) Whether the application has merit.
2) Who shall bear the costs.
Whether the application has merit.
64. The Respondent being a State Corporation is established under an Act of Parliament is infused with governmental character and as such the mode of execution to be adopted ought to be in accordance with the provisions of the Government Proceedings Act.
65. Before an order of mandamus is issued against the Respondent, the Applicant must therefore abide by the procedure in Section 21 of Government Proceedings Act which provides:
“(1) 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.”
66. Section 21 (3) of the said Act on the other hand provides:
“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.”
67. In the case of Republic v Attorney General Ex partes Miriam Wairimu Wambugu & another [2021] eKLR the learned Judge placed reliance on the holding in Republic vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) where Githua J. held 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 27 (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."
68. Judgment was entered on 6th February 2020 in High Court Commercial Cause No 686 and 687 of 2009 as consolidated in favour of the Applicants against the Kenya Broadcasting Corporation for a total sum of Euro 120,000.00 and interest on the judgment sum running from the year 2008 and as the Costs of the suits.
69. The Applicants herein, extracted the Decree arising from the Judgment for purposes of enforcing the same.
70. Costs awarded to the Applicants herein as the Plaintiffs therein were assessed Kshs 927,957.00 by the Honourable Court in line with the Certificate of Costs dated 25th June 2021 for the sum of Kshs 923,957.00.
71. The Decree and the Certificate of Costs were served upon KBC through the Respondent herein and copied to the Corporation Secretary of KBC on 21st July 2021.
72. This is not enough. The applicants should have gone a step further to extract and serve a certificate of order against the Government upon the respondents. The Applicants did not do that.
73. The Applicants have confirmed this position in the authority that they relied on in their submissions being in the same decision, that is High Court of Kenya at Machakos in The Republic vs. Salaries & Renumeration Commission ex parte Sollo Nzuki [2020] KEHC 1074, the Hon Justice G. V. Odunga stated thus at para 17:
Dealing with the same provisions, Githua J The Republic vs. Ministry for State for Provincial Administration & Internal Security, ex parte Fredrick Manoah Egunza [2012] eKLR, expressed herself as follows:
‘…..Once a certificate of order against the Government is served on the Attorney General, section 21(3) imposes 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. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which government liability accrues…..’ (emphasis ours).
74. Once the certificate of order against the Government is served upon 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.
75. This Court persuaded by the decision in Republic vs KBC ex parte Musakari Kombo [2018] eKLR will rule that the applicant ought to have moved the Court as was discussed in that case and in line with Section 21 of the Government Proceedings Act.
76. The applicants have not complied with Section 21 of Government Proceedings Act in that they did not extract nor serve a certificate of order against the judgment as a result of which the application is prematurely before the court and I so hold.
Costs:
77. In Party of Independent Candidates of Kenya versus Mutula Kilonzo a 2 others HC EP No. 6 of 2013, the court stated as follows on the issue of costs:
"It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial judge is given discretion But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, is a rule which should not be departed from without the demonstration of good grounds for doing so. "
78. The Respondent is entitled to costs.
Determination:
79. The applicants have not made out a case for the grant of the orders sought given that they have not complied with Section 21 of Government Proceedings Act.
Order:
The application is struck out with cost.