' Background and Introduction
1. This Court is called upon to determine whether an order of Mandamus should issue compelling the Respondents to pay the decretal sum of Kshs. 272,080.75 (which amount is inclusive of interest calculated from 22nd September 2023 up to 26th July 2024), arising from an Advocate–Client Bill of Costs taxed and subsequently reduced into a decree of this Court.
2. The Applicant contends that they filed a Bill of Costs dated 29th March 2023 against Nairobi City County. The Bill was duly taxed, and a ruling was delivered on 1st December 2023, culminating in the issuance of a Certificate of Taxation on 31st January 2024 for the sum of Kshs. 243,334/= together with interest at 14% per annum until payment in full. Subsequently, judgment on the Certificate of Costs was entered on 11th July 2024, followed by the issuance of a decree on 24th July 2024 and the extraction of a Certificate of Order on 26th July 2024..
3. It is further contended that despite service of the Certificate of Order against Government and repeated demands, the Respondents have failed to settle the decretal sum, necessitating this application. The Respondents, through the affidavit of Asha Abdi, Chief Officer-Finance Nairobi County, oppose the application, arguing that payment could not have been effected in 2024 and can only be effected in 2025/2026, that payment is subject to budgetary allocation and that the Applicant has not complied with the Government Proceedings Act (GPA) and the Public Finance Management Act (PFMA).
Analysis and Determination
4. Having considered the application, response as well as the written submissions of both parties, the following issues arise for determination.
5. First, with respect to compliance with Section 21 of the GPA, the record filed in Court shows that upon taxation of the Bill of Costs, a ruling was delivered on 1st December 2003. Thereafter, a Certificate of Taxation was issued on 31st January 2024, followed by the entry of judgment and issuance of a decree on 24th July 2024. Subsequently, a Certificate of Order against the Government, together with Costs, was extracted on 26th July 2024. The demand letters from the applicant dated 1st Auguat 2024 and 29th August 2024 as well as proof of service have equally been presented before the Court in satisfaction of the requirements under Section 21(1) and (2) GPA.
6. Section 21(3) of the GPA places a statutory obligation on the accounting officer to settle the amounts stated in the certificate of order, inclusive of any accrued interest. In Republic v Permanent Secretary, Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, the Court affirmed that upon service of the certificate, the accounting officer is bound to make payment. This obligation is absolute and does not depend on the availability of budgetary allocation or the approval of Parliament.
7. The Court stated 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”.
8. The Respondents contend that the funds allocated for the 2024/2025 financial year had been depleted, and that the claim could only be addressed in the 2025/2026 budget. This Court finds that argument untenable. It is now well settled in jurisprudence that government liability arises upon the entry of judgment and the issuance of a Certificate of Order. Fiscal planning cannot be invoked to defeat a statutory obligation imposed by law. Any contrary position would render decrees against the State meaningless, undermining Article 48 of the Constitution, which guarantees the right of access to justice.
9. In this respect, I further concur with the decision in Republic v Permanent Secretary, Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [supra] that:
“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. 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”.
10. As to whether the applicant has any alternative recourse, Section 21(4) of the GPA expressly prohibits execution against government property. Consequently, the sole remedy available to a successful litigant is the writ of mandamus. In Shah v Attorney General (No. 3) [1970] EA 543, the Court held that where no other remedy exists, mandamus must issue to secure justice. Likewise, in Republic v Permanent Secretary Ministry of State For Provincial Administration and Internal Security & another Ex-parte Richard Mbugua Kahama [2013] KEHC 84 (KLR), the Court underscored that litigants should not be left with no option of ensuring that the judgments they have been awarded against the government are realised otherwise they would end up babysitting barren decrees.
11. Upon obtaining a decree against the Government and serving the Nairobi County Government with the Certificate of Order, the Applicant acquired a vested legal right which, in turn, imposed a statutory obligation on the County’s accounting officer to satisfy the decretal sum specified therein. The Respondent is unequivocally bound, both by statute and by public duty, to comply with the decree issued by a competent court in favor of the Applicant. It is further uncontested that no appeal has been lodged against the judgment of this Court. In these circumstances, the balance of convenience, coupled with the imperatives of justice, decisively warrant the issuance of an order of mandamus..
Disposition
12. The application dated 23rd June 2025 is therefore allowed with the result that
i. An order of mandamus is hereby issued compelling the Respondents to pay to the Applicant forthwith and without delay, the decretal decretal sum of Kshs.272,080.75 inclusive of interest accrued at the rate of 14% per annum from 22nd September 2023 up to 26th July 2024.
ii. That in default of payment under prayer 1 the applicant be at liberty to take out a Notice to Show Cause why the Respondents should not be committed to civil jail for contempt of Court Orders.
iii. Each party shall bear their costs of the application.
'
1. This Court is called upon to determine whether an order of Mandamus should issue compelling the Respondents to pay the decretal sum of Kshs. 272,080.75 (which amount is inclusive of interest calculated from 22nd September 2023 up to 26th July 2024), arising from an Advocate–Client Bill of Costs taxed and subsequently reduced into a decree of this Court.
2. The Applicant contends that they filed a Bill of Costs dated 29th March 2023 against Nairobi City County. The Bill was duly taxed, and a ruling was delivered on 1st December 2023, culminating in the issuance of a Certificate of Taxation on 31st January 2024 for the sum of Kshs. 243,334/= together with interest at 14% per annum until payment in full. Subsequently, judgment on the Certificate of Costs was entered on 11th July 2024, followed by the issuance of a decree on 24th July 2024 and the extraction of a Certificate of Order on 26th July 2024..
3. It is further contended that despite service of the Certificate of Order against Government and repeated demands, the Respondents have failed to settle the decretal sum, necessitating this application. The Respondents, through the affidavit of Asha Abdi, Chief Officer-Finance Nairobi County, oppose the application, arguing that payment could not have been effected in 2024 and can only be effected in 2025/2026, that payment is subject to budgetary allocation and that the Applicant has not complied with the Government Proceedings Act (GPA) and the Public Finance Management Act (PFMA).
Analysis and Determination
4. Having considered the application, response as well as the written submissions of both parties, the following issues arise for determination.
5. First, with respect to compliance with Section 21 of the GPA, the record filed in Court shows that upon taxation of the Bill of Costs, a ruling was delivered on 1st December 2003. Thereafter, a Certificate of Taxation was issued on 31st January 2024, followed by the entry of judgment and issuance of a decree on 24th July 2024. Subsequently, a Certificate of Order against the Government, together with Costs, was extracted on 26th July 2024. The demand letters from the applicant dated 1st Auguat 2024 and 29th August 2024 as well as proof of service have equally been presented before the Court in satisfaction of the requirements under Section 21(1) and (2) GPA.
6. Section 21(3) of the GPA places a statutory obligation on the accounting officer to settle the amounts stated in the certificate of order, inclusive of any accrued interest. In Republic v Permanent Secretary, Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, the Court affirmed that upon service of the certificate, the accounting officer is bound to make payment. This obligation is absolute and does not depend on the availability of budgetary allocation or the approval of Parliament.
7. The Court stated 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”.
8. The Respondents contend that the funds allocated for the 2024/2025 financial year had been depleted, and that the claim could only be addressed in the 2025/2026 budget. This Court finds that argument untenable. It is now well settled in jurisprudence that government liability arises upon the entry of judgment and the issuance of a Certificate of Order. Fiscal planning cannot be invoked to defeat a statutory obligation imposed by law. Any contrary position would render decrees against the State meaningless, undermining Article 48 of the Constitution, which guarantees the right of access to justice.
9. In this respect, I further concur with the decision in Republic v Permanent Secretary, Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [supra] that:
“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. 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”.
10. As to whether the applicant has any alternative recourse, Section 21(4) of the GPA expressly prohibits execution against government property. Consequently, the sole remedy available to a successful litigant is the writ of mandamus. In Shah v Attorney General (No. 3) [1970] EA 543, the Court held that where no other remedy exists, mandamus must issue to secure justice. Likewise, in Republic v Permanent Secretary Ministry of State For Provincial Administration and Internal Security & another Ex-parte Richard Mbugua Kahama [2013] KEHC 84 (KLR), the Court underscored that litigants should not be left with no option of ensuring that the judgments they have been awarded against the government are realised otherwise they would end up babysitting barren decrees.
11. Upon obtaining a decree against the Government and serving the Nairobi County Government with the Certificate of Order, the Applicant acquired a vested legal right which, in turn, imposed a statutory obligation on the County’s accounting officer to satisfy the decretal sum specified therein. The Respondent is unequivocally bound, both by statute and by public duty, to comply with the decree issued by a competent court in favor of the Applicant. It is further uncontested that no appeal has been lodged against the judgment of this Court. In these circumstances, the balance of convenience, coupled with the imperatives of justice, decisively warrant the issuance of an order of mandamus..
Disposition
12. The application dated 23rd June 2025 is therefore allowed with the result that
i. An order of mandamus is hereby issued compelling the Respondents to pay to the Applicant forthwith and without delay, the decretal decretal sum of Kshs.272,080.75 inclusive of interest accrued at the rate of 14% per annum from 22nd September 2023 up to 26th July 2024.
ii. That in default of payment under prayer 1 the applicant be at liberty to take out a Notice to Show Cause why the Respondents should not be committed to civil jail for contempt of Court Orders.
iii. Each party shall bear their costs of the application.
'