1. The instant judicial review proceedings were commenced upon the granting of leave on 22 April 2026. The same relate to the satisfaction of a decree for the sum of Kshs. 161,336,407.29 as against the Respondents. Upon the issuance of the decree on 4 February 2026, a certificate of order against government was issued on 2 March 2026 for the payment of the said sums.
2. The substantive motion is dated 28 April 2026. It is supported by the statutory statement and verifying affidavit filed together with the ex parte chamber summons, all dated 24 March 2026. According to the statement of facts and the affidavits, the ex parte applicant and the Nairobi City County entered into a consent agreement in Milimani HCCOMM No. E323 of 2025 – Prof. Musili Wambua & Company Advocates vs. Nairobi City County wherein Nairobi City County agreed to pay the ex parte Applicant the sum of Kshs. 118,992,915.28 together with interest of 12% per annum from the date of filing the suit until payment in full and a further sum of Kshs. 220,000.00 being costs.
3. The ex parte Applicant avers that a decree dated 4 February 2026 was issued and the same was served upon Nairobi City County vide a letter dated 8 February 2026 requesting for payment. The ex parte Applicant subsequently obtained a certificate of order against the government for the payment of Kshs. 161, 336,407.29 being the decretal sum plus interest due as at 2 March 2026. This certificate was duly served on the Respondents on 9 March 202.
4. The ex parte Applicant has exhibited various documents, in support of the above averments. They are: a duly executed consent in Milimani HCCOMM No. E323 of 2025 – Prof. Musili Wambua & Company Advocates vs. Nairobi City County dated 25 September 2025; copy of decree dated 4 February 2026; letter forwarding the decree upon the Respondents dated 8 February 2026; a certificate of order against the government for the payment of Kshs. 161,336,407.29 dated 2 March 2026; affidavit of service dated 16 March 2026, and letter of the same date.
5. The Respondents filed a replying affidavit, sworn on 17 April 2026, by Asha Abdi contending that although they were served with the certificate of order against government, they should not be compelled through an order of mandamus to effect payment on the grounds that the county is constrained by the statutory budgetary cycle and public finance laws and cannot lawfully make immediate payment outside appropriation. They further contend that the Applicant’s claim will be considered in the next financial year and the Respondents would be paid once the same is allocated for, approved and passed by the County Assembly.
6. Parties filed submissions in support and in opposition of the application. The same are dated 11 June 2026 (the ex parte Applicant) and 16 June 2026 (the Respondents).
7. Section 21 (4) of the Government proceedings Act prohibits enforcement against government in the ordinary way as follows:
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.
8. It follows then that a party who seeks the satisfaction of a decree issued by a court can only do so through resort to judicial review. In Republic vs. County Secretary, Nairobi City County & Another ex parte Wachira Nderitu Ngugi & Co. Advocates [2016] eKLR , the court held thus:
…the law as it stands presently is that no execution can be levied against the property of a Government in settlement of a decree in a civil case and hence the only recourse available to a decree holder is to apply for mandamus against the Chief Officer of the Government, and upon obtaining such orders, the decree holder will be at liberty to apply for committal of the Chief Officer if the order of mandamus is not complied with.
9. A decree holder is required to obtain from the court, a certificate of order against the Government, which should then be served. Section 21(1) of the Government Proceedings Act requires extraction of the certificate of order against the Government from the court record. Section 21(2) requires service of that certificate on the Attorney General. Section 21(3) directs the Accounting Officer, for the Government department concerned, to pay, to the person entitled or to his Advocate, the amount appearing by that certificate.
10. A certificate of order against government is, therefore, the critical document that a decree holder requires in order to enforce payment against government. Once this document has been served upon the Attorney General, in case the decree or order is against the national government, or the County Attorney – where the decree is against a county government. See, Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza [2012] eKLR and Republic v County Executive Finance and Economic Planning & another; Muthiga (Ex parte Applicant) [2026] KEHC 9992 (KLR)
11. The service of this certificate creates a public duty upon the responsible officers to satisfy the decree. Consequently, the prerogative order of mandamus is available to enforce that duty. See Kenya National Examinations Council vs. Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR. The question in this case then is, whether the duty to pay has accrued – whether the relevant certificate of order against government has been served upon the relevant officers.
12. I am satisfied, on the strength of the evidence relied upon by the ex parte Applicant, that a certificate of order against government was extracted on 2 March 2026 and the same was served upon the Respondents on 16 March 2026. An affidavit of service was exhibited by the ex parte Applicant together with a copy of the received certificate of order against government and the forwarding letter. As the ex parte Applicant has satisfied the procedural step necessary for compelling payment of a decree by government, basis has been established for the issuance of an order of mandamus .
13. The Respondents concede that they were served with the certificate of order against government but contend that they should not be compelled through an order of mandamus to effect payment on the grounds that the county is constrained by the statutory budgetary cycle and public finance laws and cannot lawfully make immediate payment outside appropriation. It is the Respondents’ further case that compelling payment through mandamus would result in unlawful expenditure and the Court shouldn’t grant this prerogative order where lawful processes remain available.
14. As stated above, a duty to pay accrues once the certificate of order against government is served upon the relevant officers. A Mandamus order is available to issue when a duty to act accrues and a public officer has failed to act. The Respondents’ position does not dispute that the duty has accrued. The order is warranted as a matter of course. See, Red Dot Distribution EPZ Ltd v Kenya Revenue Authority & another [2026] KEHC 7733 (KLR) .
15. Consequently, the application dated 28 April 2026 is merited, and I hereby allow it as prayed, in prayer 1, with costs. Orders accordingly.
Dated and Delivered at Nairobi this 16 th day of September, 2026.
Nabil M. Orina
Judge
Judgment virtually delivered in the presence of:
Advocates:
Ms. Matata for the Applicant
Ms. Komo for the Respondents
Court Assistant
Ms. Linda Nyawira
2. The substantive motion is dated 28 April 2026. It is supported by the statutory statement and verifying affidavit filed together with the ex parte chamber summons, all dated 24 March 2026. According to the statement of facts and the affidavits, the ex parte applicant and the Nairobi City County entered into a consent agreement in Milimani HCCOMM No. E323 of 2025 – Prof. Musili Wambua & Company Advocates vs. Nairobi City County wherein Nairobi City County agreed to pay the ex parte Applicant the sum of Kshs. 118,992,915.28 together with interest of 12% per annum from the date of filing the suit until payment in full and a further sum of Kshs. 220,000.00 being costs.
3. The ex parte Applicant avers that a decree dated 4 February 2026 was issued and the same was served upon Nairobi City County vide a letter dated 8 February 2026 requesting for payment. The ex parte Applicant subsequently obtained a certificate of order against the government for the payment of Kshs. 161, 336,407.29 being the decretal sum plus interest due as at 2 March 2026. This certificate was duly served on the Respondents on 9 March 202.
4. The ex parte Applicant has exhibited various documents, in support of the above averments. They are: a duly executed consent in Milimani HCCOMM No. E323 of 2025 – Prof. Musili Wambua & Company Advocates vs. Nairobi City County dated 25 September 2025; copy of decree dated 4 February 2026; letter forwarding the decree upon the Respondents dated 8 February 2026; a certificate of order against the government for the payment of Kshs. 161,336,407.29 dated 2 March 2026; affidavit of service dated 16 March 2026, and letter of the same date.
5. The Respondents filed a replying affidavit, sworn on 17 April 2026, by Asha Abdi contending that although they were served with the certificate of order against government, they should not be compelled through an order of mandamus to effect payment on the grounds that the county is constrained by the statutory budgetary cycle and public finance laws and cannot lawfully make immediate payment outside appropriation. They further contend that the Applicant’s claim will be considered in the next financial year and the Respondents would be paid once the same is allocated for, approved and passed by the County Assembly.
6. Parties filed submissions in support and in opposition of the application. The same are dated 11 June 2026 (the ex parte Applicant) and 16 June 2026 (the Respondents).
7. Section 21 (4) of the Government proceedings Act prohibits enforcement against government in the ordinary way as follows:
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.
8. It follows then that a party who seeks the satisfaction of a decree issued by a court can only do so through resort to judicial review. In Republic vs. County Secretary, Nairobi City County & Another ex parte Wachira Nderitu Ngugi & Co. Advocates [2016] eKLR , the court held thus:
…the law as it stands presently is that no execution can be levied against the property of a Government in settlement of a decree in a civil case and hence the only recourse available to a decree holder is to apply for mandamus against the Chief Officer of the Government, and upon obtaining such orders, the decree holder will be at liberty to apply for committal of the Chief Officer if the order of mandamus is not complied with.
9. A decree holder is required to obtain from the court, a certificate of order against the Government, which should then be served. Section 21(1) of the Government Proceedings Act requires extraction of the certificate of order against the Government from the court record. Section 21(2) requires service of that certificate on the Attorney General. Section 21(3) directs the Accounting Officer, for the Government department concerned, to pay, to the person entitled or to his Advocate, the amount appearing by that certificate.
10. A certificate of order against government is, therefore, the critical document that a decree holder requires in order to enforce payment against government. Once this document has been served upon the Attorney General, in case the decree or order is against the national government, or the County Attorney – where the decree is against a county government. See, Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza [2012] eKLR and Republic v County Executive Finance and Economic Planning & another; Muthiga (Ex parte Applicant) [2026] KEHC 9992 (KLR)
11. The service of this certificate creates a public duty upon the responsible officers to satisfy the decree. Consequently, the prerogative order of mandamus is available to enforce that duty. See Kenya National Examinations Council vs. Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR. The question in this case then is, whether the duty to pay has accrued – whether the relevant certificate of order against government has been served upon the relevant officers.
12. I am satisfied, on the strength of the evidence relied upon by the ex parte Applicant, that a certificate of order against government was extracted on 2 March 2026 and the same was served upon the Respondents on 16 March 2026. An affidavit of service was exhibited by the ex parte Applicant together with a copy of the received certificate of order against government and the forwarding letter. As the ex parte Applicant has satisfied the procedural step necessary for compelling payment of a decree by government, basis has been established for the issuance of an order of mandamus .
13. The Respondents concede that they were served with the certificate of order against government but contend that they should not be compelled through an order of mandamus to effect payment on the grounds that the county is constrained by the statutory budgetary cycle and public finance laws and cannot lawfully make immediate payment outside appropriation. It is the Respondents’ further case that compelling payment through mandamus would result in unlawful expenditure and the Court shouldn’t grant this prerogative order where lawful processes remain available.
14. As stated above, a duty to pay accrues once the certificate of order against government is served upon the relevant officers. A Mandamus order is available to issue when a duty to act accrues and a public officer has failed to act. The Respondents’ position does not dispute that the duty has accrued. The order is warranted as a matter of course. See, Red Dot Distribution EPZ Ltd v Kenya Revenue Authority & another [2026] KEHC 7733 (KLR) .
15. Consequently, the application dated 28 April 2026 is merited, and I hereby allow it as prayed, in prayer 1, with costs. Orders accordingly.
Dated and Delivered at Nairobi this 16 th day of September, 2026.
Nabil M. Orina
Judge
Judgment virtually delivered in the presence of:
Advocates:
Ms. Matata for the Applicant
Ms. Komo for the Respondents
Court Assistant
Ms. Linda Nyawira