Applicant’s Case;
1. The Application before me is the Applicant’s Notice of Motion dated 17th January, 2025, seeking the following orders:
1) THAT this Honourable Court be pleased to issue an Order of Mandamus compelling the Respondents to pay to the Applicant forthwith and without delay, the decretal sum delineated hereunder together with the accrued interest until payment in full, that is to say;
PARTICULARS
a) Decretal Amount Kshs. 10,804,514.00/=
b) Interest on the Disbursements (Kshs.100, 000) from 26th May 2020 to 30th October 2024 at 14% per annum (1618 days) Kshs.62,060.27/=
Total Amount Kshs. 10,866,574.27/=
2) THAT in default, Notice to Show Cause do issue against the Respondents to show cause why they should not be cited for being in contempt of Court Orders.
3) THAT the costs of this Application be borne by the Respondents.
2. The Application is supported by a supporting affidavit by Prof. Tom Ojienda S.C sworn on 17th January, 2025.
3. The Applicant, a law firm, rendered legal services to the Nairobi City County Government (the Respondents) and subsequently filed a Bill of Costs dated 2nd December 2019. The Bill was taxed on 26th May 2020 at Kshs. 10,804,514.00, and a Certificate of Taxation was issued on 9th June 2020.
4. Thereafter, on 16th July 2020, the Applicant moved the court under Section 51(2) of the Advocates Act seeking entry of judgment for the taxed sum. Judgment was entered on 4th February 2022, and a Decree issued on 10th February 2022. A Certificate of Order Against Government was subsequently extracted on 30th October 2024, confirming the sum payable at Kshs. 10,866,574.27, inclusive of accrued interest (interest applied at 4% from 26th May, 2020 t0 30th October, 2024).
5. It is asserted that despite several formal demands for settlement including letters dated 13th November 2024 and 4th December 2024, and proof of service thereof, the Respondents failed to satisfy the decretal amount.
6. Consequently, the Applicant filed for leave to institute Judicial Review proceedings seeking an Order of Mandamus to compel payment. Leave was granted on 14th January 2025, and the current motion for Mandamus followed.
7. The Applicant now seeks a Judicial Review order of Mandamus to compel the Respondents to settle the outstanding decretal sum in accordance with the judgment, decree, and Certificate of Order against Government.
8. The Applicant canvassed its application by way of written submissions dated 16th June, 2025.
9. The Applicant submits that mandamus, being an equitable remedy, lies to compel a public authority to perform a statutory duty where it has failed to do so to the detriment of a party with a legal entitlement to such performance.
10. It is contended that execution proceedings against the Government are expressly barred under Section 21(4) of the Government Proceedings Act, necessitating the present application.
11. It is the Applicant’s submission that the legal test for the grant of mandamus, as set out in Apotex Inc. vs. Canada (Attorney General) and Dragan vs. Canada (Minister of Citizenship and Immigration) and adopted in Republic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another [2018] eKLR, requires the existence of a public duty owed to the applicant, a clear right to performance, prior demand and refusal (either express or implied through delay), no alternative remedy, and practical value in the order sought.
12. The Applicant contends that all these elements have been met, including lawful instruction by the County Government of Nairobi, the entry of judgment and extraction of a Certificate of Order against Government dated 30th October 2024, service of the same alongside demand letters dated 13th November and 4th December 2024, and the Respondents’ continued inaction despite reasonable time afforded to comply. The Respondents, being County officials responsible for financial administration pursuant to Sections 44 of the County Governments Act and 103(3) of the Public Finance Management Act, and as accounting officers under Section 21(3) of the Government Proceedings Act, are under a statutory obligation to settle the sums due.
13. The Applicant relies on Republic v County Secretary, Nairobi City County & 3 others; Koceyo & Co. Advocates (Ex Parte) [2020] eKLR, which affirmed that mandamus may only issue against the accounting officer of a public body.
14. Reliance is also placed in the case of Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex-Parte Fredrick Manoah Egunza [2012] eKLR, which held that enforcement of monetary decrees against Government is only available through mandamus upon compliance with Section 21 of the Act.
15. The Applicant invokes Shah vs. Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543, which held that mandamus must issue where no other remedy exists, and Republic v Attorney General & Another ex parte James Alfred Koroso, HCJR Misc. Appl. No. 44 of 2012, where the court decried the injustice of a judgment creditor being left with a “barren decree.”
16. Accordingly, the Applicant urges the Court to grant the order of mandamus as sought in the Application dated 17th January 2025 to compel the Respondents to settle the outstanding decretal sum of Kshs. 10,866,574.27/=.
Respondents’ Case;
17. In opposition to the Applicants’ Application, the Respondents filed their Replying Affidavit by Asha Abdi sworn on 11th March, 2025.
18. The Respondents’ contend that the Applicant's Notice of Motion dated 17th January 2025 is incompetent, defective, and an abuse of the court process for failing to demonstrate, with particularity, the County's refusal or failure to satisfy the decretal sum.
19. It is their position that while a Certificate of Order dated 30th October 2024 was indeed served upon them, this occurred after the closure of the budget cycle for the Financial Year 2024/2025, by which time all funds allocated for legal fees and decretals had already been committed.
20. The Respondents assert that the County Government is subject to the constraints of the Public Finance Management Act (PFM Act), 2012, and its expenditure must follow the structured budget-making process provided under Section 125 of the Act. Accordingly, the County cannot settle any monetary claims unless the sums are budgeted for and approved by the County Assembly as per Sections 117, 125, 129, 131, and 133 of the PFM Act.
21. The Respondents further rely on Section 21 of the Government Proceedings Act (Cap. 40) to argue that no execution can lie against the Government or its officers in their individual capacities, and that the Applicant has not satisfied the procedural requirements under that law, particularly Section 21(4), which prohibits execution, attachment, or similar processes against government officers.
22. It is emphasized that the 1st to 3rd Respondents, being County Officers, cannot be held personally liable for payment under the decree.
23. The Respondents urge the Court to take judicial notice of the multi-stakeholder processes involved in county financial management, noting that payment decisions require coordination across several departments. They submit that the Applicant’s approach circumvents legally mandated procedures and that granting the Orders sought would unjustly prejudice the County Government, urging the Court to dismiss the Application in its entirety.
Analysis and Determination;
Upon perusing the application, the responses by the parties for and in opposition to the application, rival submissions and authorities cited by counsel, the following issues call for determination;
1) Whether the Applications have merit.
2) Who shall bear the costs.
Whether or not the application has merit.
24. In order to succeed in the application, the Applicant has to prove its case. In determining whether the Applicant has proven its case, I am guided by The Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KLR where it was held as follows:
“(49) Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and Section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
25. Being a Judicial Review case, the Applicants are under a duty to prove that their cases fall within the principles that were enunciated in the case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300, where it was held that:
“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).
Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re an Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
26. In the instant suit Judgment was entered on 4th February 2022, and a Decree issued on 10th February 2022. A Certificate of Order Against Government was subsequently extracted on 30th October 2024, confirming the sum payable at Kshs. 10,866,574.27, inclusive of accrued interest (interest applied at 4% from 26th May, 2020 t0 30th October, 2024).
27. Consequently, the Applicant filed for leave to institute Judicial Review proceedings seeking an Order of Mandamus to compel payment. Leave was granted on 14th January 2025, and the current motion for Mandamus followed.
28. The Respondent in its defense claims that the Ex parte applicant has no claim against it and that it is not able to satisfy the decree at the moment due to insufficient budgetary allocation.
29. It is Respondents position that while a Certificate of Order dated 30th October 2024 was indeed served upon them, this occurred after the closure of the budget cycle for the Financial Year 2024/2025, by which time all funds allocated for legal fees and decretals had already been committed.
30. The Court in the case of Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka [2019] eKLR held as follows on the issue of budgetary allocation;
“The defence of non-allocation of funds by Parliament was also raised by the Respondent in the present application in his replying affidavit. Odunga J. in his ruling of 12th February 2018 extensively dealt with the defence as follows:
“As regards lack of budgetary allocation, Githua, J in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR expressed herself 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 21(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. 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 mine].
26. I associate with the said decision and it is therefore my view that settlement of decretal sum by the Government whether National or County does not necessarily depend on the availability of funds. This position was appreciated by this Court in Wachira Nderitu, Ngugi & Co. Advocates vs. The Town Clerk, City Council of Nairobi Miscellaneous Application No. 354 of 2012 in which this Court pronounced itself as follows:
“I have however considered the other issues raised by the respondent with respect to its debt portfolio as against its financial resources. It is neither in the interest of this Court nor that of the ex parte applicant that the respondent should be brought to its knees. The Court appreciates and it is a matter of judicial notice that most of the local authorities are reeling under the weight of the debts accrued by their predecessors and that they are trying to find their footing in the current governmental set up. Accordingly, I am satisfied based on the material on record that the respondent ought to be given some breathing space to arrange its finances and settle the sum due herein.”
27. In my view a party facing financial constraints is at liberty to move the Court for appropriate orders which would enable it to settle its obligations while staying afloat. That however, is not a reason for one to evade its responsibility to settle such obligations. In other words, financial difficulty is only a consideration when it comes to determining the mode of settlement of a decree but is not a basis for declining to compel the Respondent to settle a sum decreed by the Court to be due from it. That objection therefore fails.”
48. Non-allocation of funds by Parliament is not an acceptable defence or justifiable excuse for non-payment of decretal sums ordered to be paid by Government officials, in the absence of any evidence of any attempts made by the responsible Government official to commence the process of such allocation. In the present case, this is particularly relevant given that the present contempt of Court proceedings commenced in April 2017, and the Respondent did not indicate what steps if any, have been taken since then to effect payment of the monies due to the Applicant.”
31. The Respondent’s argument that it lacks budgetary allocation is therefore not a valid reason for failing to comply with this court’s orders.
32. The Respondents, being County officials responsible for financial administration pursuant to Sections 44 of the County Governments Act and 103(3) of the Public Finance Management Act, and as accounting officers under Section 21(3) of the Government Proceedings Act, are under a statutory obligation to settle the sums due.
Disposition:
33. The application has merit.
Order:
1. An Order of Mandamus compelling the Respondents to pay to the Applicant forthwith and without delay, the decretal sum delineated hereunder together with the accrued interest until payment in full as prayed.
2. In default, Notice to Show Cause do issue against the Respondents to show cause why they should not be cited for being in contempt of Court Orders.
3. Costs to the applicant.
Dated, signed and delivered at Nairobi this 26th November, 2025
1. The Application before me is the Applicant’s Notice of Motion dated 17th January, 2025, seeking the following orders:
1) THAT this Honourable Court be pleased to issue an Order of Mandamus compelling the Respondents to pay to the Applicant forthwith and without delay, the decretal sum delineated hereunder together with the accrued interest until payment in full, that is to say;
PARTICULARS
a) Decretal Amount Kshs. 10,804,514.00/=
b) Interest on the Disbursements (Kshs.100, 000) from 26th May 2020 to 30th October 2024 at 14% per annum (1618 days) Kshs.62,060.27/=
Total Amount Kshs. 10,866,574.27/=
2) THAT in default, Notice to Show Cause do issue against the Respondents to show cause why they should not be cited for being in contempt of Court Orders.
3) THAT the costs of this Application be borne by the Respondents.
2. The Application is supported by a supporting affidavit by Prof. Tom Ojienda S.C sworn on 17th January, 2025.
3. The Applicant, a law firm, rendered legal services to the Nairobi City County Government (the Respondents) and subsequently filed a Bill of Costs dated 2nd December 2019. The Bill was taxed on 26th May 2020 at Kshs. 10,804,514.00, and a Certificate of Taxation was issued on 9th June 2020.
4. Thereafter, on 16th July 2020, the Applicant moved the court under Section 51(2) of the Advocates Act seeking entry of judgment for the taxed sum. Judgment was entered on 4th February 2022, and a Decree issued on 10th February 2022. A Certificate of Order Against Government was subsequently extracted on 30th October 2024, confirming the sum payable at Kshs. 10,866,574.27, inclusive of accrued interest (interest applied at 4% from 26th May, 2020 t0 30th October, 2024).
5. It is asserted that despite several formal demands for settlement including letters dated 13th November 2024 and 4th December 2024, and proof of service thereof, the Respondents failed to satisfy the decretal amount.
6. Consequently, the Applicant filed for leave to institute Judicial Review proceedings seeking an Order of Mandamus to compel payment. Leave was granted on 14th January 2025, and the current motion for Mandamus followed.
7. The Applicant now seeks a Judicial Review order of Mandamus to compel the Respondents to settle the outstanding decretal sum in accordance with the judgment, decree, and Certificate of Order against Government.
8. The Applicant canvassed its application by way of written submissions dated 16th June, 2025.
9. The Applicant submits that mandamus, being an equitable remedy, lies to compel a public authority to perform a statutory duty where it has failed to do so to the detriment of a party with a legal entitlement to such performance.
10. It is contended that execution proceedings against the Government are expressly barred under Section 21(4) of the Government Proceedings Act, necessitating the present application.
11. It is the Applicant’s submission that the legal test for the grant of mandamus, as set out in Apotex Inc. vs. Canada (Attorney General) and Dragan vs. Canada (Minister of Citizenship and Immigration) and adopted in Republic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another [2018] eKLR, requires the existence of a public duty owed to the applicant, a clear right to performance, prior demand and refusal (either express or implied through delay), no alternative remedy, and practical value in the order sought.
12. The Applicant contends that all these elements have been met, including lawful instruction by the County Government of Nairobi, the entry of judgment and extraction of a Certificate of Order against Government dated 30th October 2024, service of the same alongside demand letters dated 13th November and 4th December 2024, and the Respondents’ continued inaction despite reasonable time afforded to comply. The Respondents, being County officials responsible for financial administration pursuant to Sections 44 of the County Governments Act and 103(3) of the Public Finance Management Act, and as accounting officers under Section 21(3) of the Government Proceedings Act, are under a statutory obligation to settle the sums due.
13. The Applicant relies on Republic v County Secretary, Nairobi City County & 3 others; Koceyo & Co. Advocates (Ex Parte) [2020] eKLR, which affirmed that mandamus may only issue against the accounting officer of a public body.
14. Reliance is also placed in the case of Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex-Parte Fredrick Manoah Egunza [2012] eKLR, which held that enforcement of monetary decrees against Government is only available through mandamus upon compliance with Section 21 of the Act.
15. The Applicant invokes Shah vs. Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543, which held that mandamus must issue where no other remedy exists, and Republic v Attorney General & Another ex parte James Alfred Koroso, HCJR Misc. Appl. No. 44 of 2012, where the court decried the injustice of a judgment creditor being left with a “barren decree.”
16. Accordingly, the Applicant urges the Court to grant the order of mandamus as sought in the Application dated 17th January 2025 to compel the Respondents to settle the outstanding decretal sum of Kshs. 10,866,574.27/=.
Respondents’ Case;
17. In opposition to the Applicants’ Application, the Respondents filed their Replying Affidavit by Asha Abdi sworn on 11th March, 2025.
18. The Respondents’ contend that the Applicant's Notice of Motion dated 17th January 2025 is incompetent, defective, and an abuse of the court process for failing to demonstrate, with particularity, the County's refusal or failure to satisfy the decretal sum.
19. It is their position that while a Certificate of Order dated 30th October 2024 was indeed served upon them, this occurred after the closure of the budget cycle for the Financial Year 2024/2025, by which time all funds allocated for legal fees and decretals had already been committed.
20. The Respondents assert that the County Government is subject to the constraints of the Public Finance Management Act (PFM Act), 2012, and its expenditure must follow the structured budget-making process provided under Section 125 of the Act. Accordingly, the County cannot settle any monetary claims unless the sums are budgeted for and approved by the County Assembly as per Sections 117, 125, 129, 131, and 133 of the PFM Act.
21. The Respondents further rely on Section 21 of the Government Proceedings Act (Cap. 40) to argue that no execution can lie against the Government or its officers in their individual capacities, and that the Applicant has not satisfied the procedural requirements under that law, particularly Section 21(4), which prohibits execution, attachment, or similar processes against government officers.
22. It is emphasized that the 1st to 3rd Respondents, being County Officers, cannot be held personally liable for payment under the decree.
23. The Respondents urge the Court to take judicial notice of the multi-stakeholder processes involved in county financial management, noting that payment decisions require coordination across several departments. They submit that the Applicant’s approach circumvents legally mandated procedures and that granting the Orders sought would unjustly prejudice the County Government, urging the Court to dismiss the Application in its entirety.
Analysis and Determination;
Upon perusing the application, the responses by the parties for and in opposition to the application, rival submissions and authorities cited by counsel, the following issues call for determination;
1) Whether the Applications have merit.
2) Who shall bear the costs.
Whether or not the application has merit.
24. In order to succeed in the application, the Applicant has to prove its case. In determining whether the Applicant has proven its case, I am guided by The Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KLR where it was held as follows:
“(49) Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and Section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
25. Being a Judicial Review case, the Applicants are under a duty to prove that their cases fall within the principles that were enunciated in the case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300, where it was held that:
“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).
Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re an Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
26. In the instant suit Judgment was entered on 4th February 2022, and a Decree issued on 10th February 2022. A Certificate of Order Against Government was subsequently extracted on 30th October 2024, confirming the sum payable at Kshs. 10,866,574.27, inclusive of accrued interest (interest applied at 4% from 26th May, 2020 t0 30th October, 2024).
27. Consequently, the Applicant filed for leave to institute Judicial Review proceedings seeking an Order of Mandamus to compel payment. Leave was granted on 14th January 2025, and the current motion for Mandamus followed.
28. The Respondent in its defense claims that the Ex parte applicant has no claim against it and that it is not able to satisfy the decree at the moment due to insufficient budgetary allocation.
29. It is Respondents position that while a Certificate of Order dated 30th October 2024 was indeed served upon them, this occurred after the closure of the budget cycle for the Financial Year 2024/2025, by which time all funds allocated for legal fees and decretals had already been committed.
30. The Court in the case of Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka [2019] eKLR held as follows on the issue of budgetary allocation;
“The defence of non-allocation of funds by Parliament was also raised by the Respondent in the present application in his replying affidavit. Odunga J. in his ruling of 12th February 2018 extensively dealt with the defence as follows:
“As regards lack of budgetary allocation, Githua, J in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR expressed herself 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 21(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. 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 mine].
26. I associate with the said decision and it is therefore my view that settlement of decretal sum by the Government whether National or County does not necessarily depend on the availability of funds. This position was appreciated by this Court in Wachira Nderitu, Ngugi & Co. Advocates vs. The Town Clerk, City Council of Nairobi Miscellaneous Application No. 354 of 2012 in which this Court pronounced itself as follows:
“I have however considered the other issues raised by the respondent with respect to its debt portfolio as against its financial resources. It is neither in the interest of this Court nor that of the ex parte applicant that the respondent should be brought to its knees. The Court appreciates and it is a matter of judicial notice that most of the local authorities are reeling under the weight of the debts accrued by their predecessors and that they are trying to find their footing in the current governmental set up. Accordingly, I am satisfied based on the material on record that the respondent ought to be given some breathing space to arrange its finances and settle the sum due herein.”
27. In my view a party facing financial constraints is at liberty to move the Court for appropriate orders which would enable it to settle its obligations while staying afloat. That however, is not a reason for one to evade its responsibility to settle such obligations. In other words, financial difficulty is only a consideration when it comes to determining the mode of settlement of a decree but is not a basis for declining to compel the Respondent to settle a sum decreed by the Court to be due from it. That objection therefore fails.”
48. Non-allocation of funds by Parliament is not an acceptable defence or justifiable excuse for non-payment of decretal sums ordered to be paid by Government officials, in the absence of any evidence of any attempts made by the responsible Government official to commence the process of such allocation. In the present case, this is particularly relevant given that the present contempt of Court proceedings commenced in April 2017, and the Respondent did not indicate what steps if any, have been taken since then to effect payment of the monies due to the Applicant.”
31. The Respondent’s argument that it lacks budgetary allocation is therefore not a valid reason for failing to comply with this court’s orders.
32. The Respondents, being County officials responsible for financial administration pursuant to Sections 44 of the County Governments Act and 103(3) of the Public Finance Management Act, and as accounting officers under Section 21(3) of the Government Proceedings Act, are under a statutory obligation to settle the sums due.
Disposition:
33. The application has merit.
Order:
1. An Order of Mandamus compelling the Respondents to pay to the Applicant forthwith and without delay, the decretal sum delineated hereunder together with the accrued interest until payment in full as prayed.
2. In default, Notice to Show Cause do issue against the Respondents to show cause why they should not be cited for being in contempt of Court Orders.
3. Costs to the applicant.
Dated, signed and delivered at Nairobi this 26th November, 2025