JUDGMENT
A. Introduction
1. The Ex parte Applicants filed the Notice of Motion dated 22nd May 2025 seeking an order of mandamus compelling the Respondents to satisfy the Certificate of Order Against the Government issued on 25th July 2024, in the sum pleaded as Kshs.34,131,922, comprising the decretal amount and taxed costs, together with interest at 12% per annum from 25th July 2024 until payment in full. It also seeks the costs of the application.
2. Also on record is the Respondents’ Notice of Motion dated 22nd June 2026, seeking the admission of a Replying Affidavit sworn by Alfred Nyandieka on 16th June 2026, notwithstanding that it was filed outside the period allowed by the Court. The Respondents attribute the delay to the illness of the County Attorney and contend that the affidavit raises material matters which ought to be considered before the Court determines the application for mandamus.
3. Following the filing of the Replying Affidavit, the Ex parte Applicant filed a Further Affidavit sworn by Richard Ombati on 30th June 2026 and thereafter filed written submissions. The Ex parte Applicant has, therefore, had a full opportunity to respond to the matters raised in the late affidavit.
B. Background
4. The dispute has its origin in Contract No. KCG/WKS/T/10/2013–2014 entered into between the Ex parte Applicant and the County Government of Kisii for the refurbishment and extension of Suneka Market and Bus Park.
5. A dispute arising from the contract was referred to arbitration. On 20th May 2021, the sole arbitrator, Eng. Apollo Okello Rogo, published a final award in favour of the Ex parte Applicant. The award included sums of Kshs.11,770,660.70 and Kshs.12,000,000, together with simple interest at the rate of 11.99% per annum in the event of non-payment within the period stipulated in the award.
6. On 7th November 2023, in Kisii High Court Miscellaneous Application No. E45 of 2021, the arbitral award was recognised and adopted as a judgment and decree of the Court. The Ex parte Applicant was granted leave to enforce it. The County Government was also ordered to reimburse the Ex parte Applicant the sum of Kshs.415,000 incurred as arbitration costs and to bear the costs and expenses incidental to the recognition and enforcement of the award.
7. The Ex parte Applicant’s costs were subsequently taxed at Kshs.477,267.60. A Certificate of Order Against the Government was thereafter issued on 25th July 2024. According to the Ex parte Applicant, the Certificate reflected a total sum of Kshs.34,131,922. A demand for payment was made on 26th July 2024, but the certified sum was not settled.
8. It is, however, common ground that on or about 14th September 2023, before the arbitral award was adopted as a judgment of the Court, the Ex parte Applicant received Kshs.5,771,845.28 from the County Government.
9. The Respondents contend that the Ex parte Applicant failed to disclose that payment when it instituted these proceedings seeking mandamus for the entire amount appearing in the Certificate of Order Against the Government. They further allege that the payment was irregularly or fraudulently obtained and that it was processed as retention money through letters purportedly signed by the County Attorney without his knowledge or authority.
10. The Respondents rely on the Auditor-General’s Report for the County Executive of Kisii for the financial year ended 30th June 2024. The report raised an audit query concerning the payment of approximately Kshs.5,771,846 as retention money. Among the matters raised were that the original contract, payment certificates, arbitral proceedings, inspection and acceptance certificates and certificate of completion had not been presented for audit.
11. The report further stated that an audit conducted on 1st August 2024 found that the project was incomplete and that the remaining works had been awarded to another contractor.
12. The Ex parte Applicant maintains that the payment was neither fraudulent nor clandestine. It states that the payment was processed through the County Government’s internal financial system, certified by the County Works Officer and approved by officers within the County Treasury.
13. The Ex parte Applicant also relies on letters dated 5th June 2023 and 13th July 2023 he says bear the name and signature of the County Attorney, recommending an initial settlement and directing that the retention money be paid.
14. The Ex parte Applicant acknowledges that the sum of Kshs.5,771,845.28 can be credited against the amount due under the decree. It nevertheless contends that the audit query does not constitute a finding that it committed fraud and cannot, without more, nullify a valid and subsisting judgment and decree.
15. The record also contains a proposed’’ Set-Off Agreement and proposed consent terms.’’ The proposed documents contemplated that the payment of Kshs.5,771,846 would be taken into account when determining the balance owed to the Ex parte Applicant. Neither document was executed by the parties.
C. Issues for Determination
16. The following issues arise for determination:
a. Whether the Replying Affidavit sworn on 16th June 2026 should be admitted out of time;
b. Whether the legal conditions for the grant of an order of mandamus have been satisfied;
c. What effect should be given to the payment of Kshs.5,771,845.28;
d. Whether the allegations of fraud and irregularity constitute a general defence to the application for mandamus;
e. What amount and interest, if any, should be the subject of the order of mandamus; and
f. Who should bear the costs of the proceedings.
D. Admission of the Replying Affidavit
17. The Replying Affidavit sworn by Alfred Nyandieka on 16th June 2026 was admittedly filed out of time. The explanation offered is that the County Attorney, who was required to swear the affidavit personally, had been unwell.
18. The principles applicable to an application for extension of time include the length of the delay, the reason for the delay, the degree of prejudice likely to be suffered by the opposite party and the overall interests of justice. Extension of time is an equitable and discretionary remedy, and the Court must consider the circumstances of each case. See Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR).
19. Although no detailed medical evidence was placed before the Court, the affidavit raises matters crucial to the proceedings herein in relation to the alleged part payment of Kshs.5,771,845.28.
20. More importantly, the Ex parte Applicant has since filed a detailed Further Affidavit responding to the allegations contained in the Replying Affidavit and has addressed the same matters in its written submissions.
21. The Ex parte Applicant has not demonstrated any prejudice that cannot be adequately cured by the admission of both affidavits. Excluding the Replying Affidavit would result in the Court determining the dispute without considering a payment which the Ex parte Applicant itself now accepts was made and must be credited against the decretal sum.
22. Article 159(2)(d) of the Constitution imposes upon courts the duty to dispense justice without undue reliance on technicalities of procedure.
23. I am consequently satisfied that the interests of justice favour the admission of the Replying Affidavit.
24. The Replying Affidavit sworn by Alfred Nyandieka on 16th June 2026 and the Further Affidavit sworn by Richard Ombati on 30th June 2026 are therefore admitted as properly filed. The prayer seeking the arrest or postponement of judgment has been overtaken by events.
E. Whether Mandamus Should Issue
25. The nature and scope of an order of mandamus were laid down by the Court of Appeal in Kenya National Examinations Council v Republic, ex parte Geoffrey Gathenji Njoroge & 9 others [1997] KECA 58 (KLR). Mandamus is a writ which compels the performance of a public duty imposed by law where the person or body upon whom the duty is imposed has failed or refused to perform it. The order cannot command the performance of a duty in a manner inconsistent with the law or compel a public authority to do more than it is legally bound to do.
26. Section 21(1) of the Government Proceedings Act provides for the procedure for execution of a decree against Government . It provides for the issuance of a Certificate of Order Against the Government after the lapse of the prescribed period following the making of an order against the Government.
27. Under section 21(3), where a Certificate of Order Against the Government has been issued, the accounting officer of the relevant Government department is required, subject to the provisions of the Act, to pay the amount appearing in the certificate together with any interest lawfully due thereon.
28. Section 21(4) prohibits execution, attachment or similar process against Government property. Section 21(5) extends the provisions of section 21, with the necessary modifications, to county governments.
29. The combined effect of these provisions is that a decree-holder cannot employ the ordinary modes of execution against a county government. Once the decree-holder has obtained the prescribed certificate, served it and payment is not forthcoming, an order of mandamus is the principal means through which the responsible public officers may be compelled to perform the statutory duty of satisfying the decree.
30. In Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security, ex parte Fredrick Manoah Egunza [2012] KEHC 1643 (KLR), the Court held that once the statutory procedure has been complied with, the duty of the accounting officer to satisfy the decree is not conditional upon the availability of a subsequent budgetary allocation. A judgment creditor should not be indefinitely denied the fruits of a judgment by the public authority’s failure to make the necessary financial arrangements.
31. In Greenwood Printers & Stationers Ltd v Independent Electoral and Boundaries Commission [2022] eKLR, the Court ordered payment of the amount appearing in the Certificate of Order Against the Government after deducting sums already received by the decree-holder. That decision confirms that partial satisfaction of a decree does not extinguish the public duty to pay the outstanding balance.
32. A similar approach was adopted in Multiline Services Limited v Nairobi City County Government [2025] KEHC 9325 (KLR), where the Court issued an order of mandamus for the outstanding balance of a partially satisfied decree. The Court held that requests for further time, unsupported by evidence of a concrete payment arrangement or steps taken towards budgetary provision, did not constitute a defence to the enforcement of a lawful decree.
33. In the present case, the following facts are not disputed:
a. A final arbitral award was published on 20th May 2021;
b. The arbitral award was recognised and adopted as a judgment and decree of this Court on 7th November 2023;
c. There is no evidence that the judgment or decree has been stayed, varied, reviewed or set aside;
d. The Ex parte Applicant’s costs were taxed;
e. A Certificate of Order Against the Government was issued on 25th July 2024;
f. A demand for payment was made upon the County Government; and
g. The decretal sum has not been fully satisfied.
35. I am consequently satisfied that the conditions precedent for the grant of an order of mandamus have been established.
F. Effect of the Payment of Kshs.5,771,845.28
36. The Ex parte Applicant’s original Motion sought payment of the entire amount appearing in the Certificate of Order Against the Government. It did not disclose that it had previously received Kshs.5,771,845.28 from the County Government.
37. That payment is material to this case A party invoking the Court’s judicial review jurisdiction, particularly one seeking a discretionary remedy, is under a duty to make a candid and complete disclosure of all material facts.
38. In Republic v Kenya Medical Training College & another, ex parte Kenya Universities and Colleges Central Placement Service [2015] eKLR, the Court emphasised that an applicant for judicial review relief is required to approach the Court with utmost good faith and disclose all material facts relevant to the exercise of the Court’s discretion.
39. The omission in the present case exposed the Court to the risk of issuing an order for an amount exceeding what was lawfully outstanding.
40. Nevertheless, the payment has now been placed before the Court, the Ex parte Applicant acknowledges it and the final orders can be framed in a manner that fully credits the Respondents with the amount paid. The omission is therefore relevant to the terms of the relief and to costs, but it does not, by itself, extinguish the subsisting decree or the statutory duty to pay the outstanding balance.
G. Allegations of Fraud and Irregularity
41. The County Attorney states that the payment of Kshs.5,771,845.28 was processed through letters signed in his name without his knowledge or authority.
42. Fraud is a serious allegation. It must be distinctly pleaded and strictly proved. Although the standard of proof does not ordinarily rise to proof beyond reasonable doubt, it is higher than proof on a mere balance of probabilities. Fraud cannot be inferred from suspicion, conjecture or general allegations. See Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] KECA 5 (KLR).
43. In the present proceedings, the Respondents did not place before the Court a report from a document examiner, a police complaint, an investigation report, evidence of disciplinary proceedings or affidavits from the officers who processed and approved the payment. The record contains letters dated 5th June 2023 and 13th July 2023 signed for the County Attorney, a payment voucher, certification by the County Works Officer and approvals by officers within the County Treasury.
44. The said documents do not conclusively determine whether the payment was properly authorised. They nevertheless demonstrate that the transaction passed through several levels of the County Government’s administrative and financial structures. The evidential record is therefore insufficient for the Court to make a definitive finding, in these judicial review proceedings, that the Ex parte Applicant procured the payment through fraud, forgery or collusion.
45. The Auditor-General’s report raises legitimate concerns regarding the County Government’s internal controls, record keeping, supporting documentation, completion of the works and value for money. An audit query is, however, not equivalent to a judicial determination that the Ex parte Applicant committed fraud or forged documents.
46. Nor does the audit query, without an order setting aside or varying the decree, extinguish the obligation arising from the judgment and the Certificate of Order Against the Government.
47. The Ex parte Applicant is not entitled to recover more than is lawfully outstanding. The admitted payment must therefore be fully credited against the certified amount so as to prevent double recovery.
48. The proposed Set-Off Agreement and proposed consent terms were not executed by the parties. They cannot, therefore, be enforced as a binding compromise. At most, they demonstrate that the parties had contemplated taking the partial payment into account when determining the outstanding balance.
49. Should the County Government consider that the payment was procured through fraud, forgery, misrepresentation or collusion, it remains at liberty to institute appropriate recovery proceedings or to take any other lawful administrative, civil or criminal action. Those issues cannot, however, be conclusively determined on the affidavit evidence presently before the Court.
50. The just course is therefore to enforce the subsisting decree while giving the County Government full credit for the amount already paid.
H. Proper Officers, Amount Payable and Interest
52. Section 21(3) of the Government Proceedings Act places the duty of satisfying a Certificate of Order Against the Government upon the accounting officer of the relevant Government department or entity.
53. Under section 148 of the Public Finance Management Act, the County Executive Committee Member for Finance is required to designate accounting officers for county government entities and to ensure that each entity has an accounting officer responsible for its financial management. The person responsible for the administration of a county government entity is ordinarily designated as its accounting officer.
54. The County Executive Committee Member for Finance is not, merely by virtue of holding that office, necessarily the accounting officer of every county government entity. The statutory duty of actual payment rests with the accounting officer duly designated under section 148 of the Public Finance Management Act.
55. Kenyan courts have nevertheless recognised that the County Secretary and the relevant officers responsible for county finance may properly be required, in their official capacities, to facilitate the satisfaction of lawful decrees through the designated accounting officer. See Republic v County Secretary, Migori County Government & another, ex parte Linet Magambo [2020] eKLR and Mwangi Njenga & Company Advocates v County Secretary, Mombasa County Government & another [2023] KEHC 22138 (KLR).
56. The order of mandamus shall therefore be directed to the Respondents in their official capacities, requiring them to take all lawful administrative and financial steps necessary to ensure that the Certificate of Order Against the Government is satisfied through the accounting officer duly designated under section 148 of the Public Finance Management Act.
57. The order does not impose personal liability upon the current holders of the offices of County Secretary or County Executive Committee Member for Finance.
58. The Court cannot order payment of the entire sum of Kshs.34,131,922 appearing in the Notice of Motion because that would disregard the admitted payment of Kshs.5,771,845.28.
59. The arithmetic balance obtained by deducting the admitted payment from the certified amount is:
Kshs.34,131,922.00 Less Kshs.5,771,845.28 Balance: Kshs.28,360,076.72
60. The figure of Kshs.28,360,076.72 is subject only to the proper reconciliation of interest in accordance with the arbitral award, the decree and the Certificate of Order Against the Government, and to the deduction of any further payments made after the commencement of these proceedings.
61. The Ex parte Applicant prayed for interest at 12% per annum from 25th July 2024. The arbitral award adopted as the decree of the Court provided for simple interest at 11.99% per annum on the sums and for the periods specified in the award.
62. These proceedings are for the enforcement, rather than the alteration, of the decree. The Court cannot enlarge the substantive terms of the adopted arbitral award by substituting an interest rate of 12% for the rate of 11.99% contained in the award and decree.
63. The Ex parte Applicant is therefore entitled only to interest lawfully accruing in accordance with the arbitral award, the decree and the Certificate of Order Against the Government. Section 21(3) of the Government Proceedings Act similarly limits payment to the amount appearing in the certificate together with interest, if any, lawfully due thereon.
64. In the case of Greenwood Printers & Stationers Ltd v Independent Electoral and Boundaries Commission [2022] KEHC 26922 (KLR) , it was held that ‘’ It cannot be disputed that the respondent relies on funds from the National Treasury which funds are budgeted for in advance. It is also true that the process consumes time.’’ I will thus grant the respondent reasonable time to process the funds from national treasury and make payment which is long over due
65. Any dispute confined solely to the arithmetic computation of the outstanding balance may be placed before the Deputy Registrar for settlement. Such computation shall not reopen, vary or reconsider the merits of the arbitral award or decree.
I. Costs
65. The general principle under section 27 of the Civil Procedure Act is that costs follow the event, subject to the Court’s discretion.
66. The Ex parte Applicant has succeeded in establishing its entitlement to an order of mandamus for the outstanding balance.
67. Nevertheless, its failure to disclose the substantial partial payment when it instituted proceedings seeking enforcement of the entire certified amount was material and deprived the Court of a complete account of the payments already made.
68. The Respondents, on the other hand, have failed to satisfy a valid decree for a considerable period. They also advanced grave allegations of fraud and forgery without placing sufficient evidence before the Court to justify a definitive finding against the Ex parte Applicant.
69. In those circumstances, the appropriate order is that each party shall bear its own costs.
J. Disposition
70. In the result, the Court makes the following orders:
a. The Respondents’ Notice of Motion dated 22nd June 2026 is allowed to the extent that the Replying Affidavit sworn by Alfred Nyandieka on 16th June 2026 is admitted as properly filed.
b. The prayer seeking the arrest or postponement of judgment is spent.
c. The Further Affidavit sworn by Richard Ombati on 30th June 2026 is admitted as properly filed.
d. The Ex parte Applicant’s Notice of Motion dated 22nd May 2025 partially succeeds.
e. An order of mandamus is hereby issued compelling the 1st and 2nd Respondents, in their official capacities, to take all lawful administrative and financial steps necessary to ensure that the accounting officer duly designated under section 148 of the Public Finance Management Act satisfies the Certificate of Order Against the Government issued on 25th July 2024.
f. In satisfying the Certificate, full credit shall be given for the sum of Kshs.5,771,845.28 paid to the Ex parte Applicant on or about 14th September 2023 and for any other payments subsequently made.
g. For avoidance of doubt, the arithmetic balance obtained by deducting Kshs.5,771,845.28 from the certified sum of Kshs.34,131,922 is Kshs.28,360,076.72, subject to the proper reconciliation of interest in accordance with the arbitral award, the decree and the Certificate of Order Against the Government.
h. Interest shall accrue strictly in accordance with the arbitral award, the decree and the Certificate of Order Against the Government. The claim for interest at 12% per annum, to the extent that it exceeds or varies the terms of the award and decree, is declined.
i. The outstanding amount shall be fully paid within six months from the date of service of this order upon the Respondents and the accounting officer duly designated under section 148 of the Public Finance Management Act.
j. The Certificate of Order Against the Government shall be treated as having been partially satisfied to the extent of Kshs.5,771,845.28 and any further payments made by the County Government.
k. In the event of a dispute confined solely to the arithmetic computation of the outstanding balance, either party may place its computation before the Deputy Registrar for settlement in accordance with the arbitral award, the decree, the Certificate of Order Against the Government and the payments made.
m. Each party shall bear its own costs of the two applications.
71. It is so ordered.
T. A. ODERA JUDGE
14.7.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 14 TH DAY OF JULY 2026 IN THE PRESENCE OF :
MR OCHIENG FOR THE APPLICANT . N/A FOR RESPODENT CA BUSIENEI
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A. Introduction
1. The Ex parte Applicants filed the Notice of Motion dated 22nd May 2025 seeking an order of mandamus compelling the Respondents to satisfy the Certificate of Order Against the Government issued on 25th July 2024, in the sum pleaded as Kshs.34,131,922, comprising the decretal amount and taxed costs, together with interest at 12% per annum from 25th July 2024 until payment in full. It also seeks the costs of the application.
2. Also on record is the Respondents’ Notice of Motion dated 22nd June 2026, seeking the admission of a Replying Affidavit sworn by Alfred Nyandieka on 16th June 2026, notwithstanding that it was filed outside the period allowed by the Court. The Respondents attribute the delay to the illness of the County Attorney and contend that the affidavit raises material matters which ought to be considered before the Court determines the application for mandamus.
3. Following the filing of the Replying Affidavit, the Ex parte Applicant filed a Further Affidavit sworn by Richard Ombati on 30th June 2026 and thereafter filed written submissions. The Ex parte Applicant has, therefore, had a full opportunity to respond to the matters raised in the late affidavit.
B. Background
4. The dispute has its origin in Contract No. KCG/WKS/T/10/2013–2014 entered into between the Ex parte Applicant and the County Government of Kisii for the refurbishment and extension of Suneka Market and Bus Park.
5. A dispute arising from the contract was referred to arbitration. On 20th May 2021, the sole arbitrator, Eng. Apollo Okello Rogo, published a final award in favour of the Ex parte Applicant. The award included sums of Kshs.11,770,660.70 and Kshs.12,000,000, together with simple interest at the rate of 11.99% per annum in the event of non-payment within the period stipulated in the award.
6. On 7th November 2023, in Kisii High Court Miscellaneous Application No. E45 of 2021, the arbitral award was recognised and adopted as a judgment and decree of the Court. The Ex parte Applicant was granted leave to enforce it. The County Government was also ordered to reimburse the Ex parte Applicant the sum of Kshs.415,000 incurred as arbitration costs and to bear the costs and expenses incidental to the recognition and enforcement of the award.
7. The Ex parte Applicant’s costs were subsequently taxed at Kshs.477,267.60. A Certificate of Order Against the Government was thereafter issued on 25th July 2024. According to the Ex parte Applicant, the Certificate reflected a total sum of Kshs.34,131,922. A demand for payment was made on 26th July 2024, but the certified sum was not settled.
8. It is, however, common ground that on or about 14th September 2023, before the arbitral award was adopted as a judgment of the Court, the Ex parte Applicant received Kshs.5,771,845.28 from the County Government.
9. The Respondents contend that the Ex parte Applicant failed to disclose that payment when it instituted these proceedings seeking mandamus for the entire amount appearing in the Certificate of Order Against the Government. They further allege that the payment was irregularly or fraudulently obtained and that it was processed as retention money through letters purportedly signed by the County Attorney without his knowledge or authority.
10. The Respondents rely on the Auditor-General’s Report for the County Executive of Kisii for the financial year ended 30th June 2024. The report raised an audit query concerning the payment of approximately Kshs.5,771,846 as retention money. Among the matters raised were that the original contract, payment certificates, arbitral proceedings, inspection and acceptance certificates and certificate of completion had not been presented for audit.
11. The report further stated that an audit conducted on 1st August 2024 found that the project was incomplete and that the remaining works had been awarded to another contractor.
12. The Ex parte Applicant maintains that the payment was neither fraudulent nor clandestine. It states that the payment was processed through the County Government’s internal financial system, certified by the County Works Officer and approved by officers within the County Treasury.
13. The Ex parte Applicant also relies on letters dated 5th June 2023 and 13th July 2023 he says bear the name and signature of the County Attorney, recommending an initial settlement and directing that the retention money be paid.
14. The Ex parte Applicant acknowledges that the sum of Kshs.5,771,845.28 can be credited against the amount due under the decree. It nevertheless contends that the audit query does not constitute a finding that it committed fraud and cannot, without more, nullify a valid and subsisting judgment and decree.
15. The record also contains a proposed’’ Set-Off Agreement and proposed consent terms.’’ The proposed documents contemplated that the payment of Kshs.5,771,846 would be taken into account when determining the balance owed to the Ex parte Applicant. Neither document was executed by the parties.
C. Issues for Determination
16. The following issues arise for determination:
a. Whether the Replying Affidavit sworn on 16th June 2026 should be admitted out of time;
b. Whether the legal conditions for the grant of an order of mandamus have been satisfied;
c. What effect should be given to the payment of Kshs.5,771,845.28;
d. Whether the allegations of fraud and irregularity constitute a general defence to the application for mandamus;
e. What amount and interest, if any, should be the subject of the order of mandamus; and
f. Who should bear the costs of the proceedings.
D. Admission of the Replying Affidavit
17. The Replying Affidavit sworn by Alfred Nyandieka on 16th June 2026 was admittedly filed out of time. The explanation offered is that the County Attorney, who was required to swear the affidavit personally, had been unwell.
18. The principles applicable to an application for extension of time include the length of the delay, the reason for the delay, the degree of prejudice likely to be suffered by the opposite party and the overall interests of justice. Extension of time is an equitable and discretionary remedy, and the Court must consider the circumstances of each case. See Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR).
19. Although no detailed medical evidence was placed before the Court, the affidavit raises matters crucial to the proceedings herein in relation to the alleged part payment of Kshs.5,771,845.28.
20. More importantly, the Ex parte Applicant has since filed a detailed Further Affidavit responding to the allegations contained in the Replying Affidavit and has addressed the same matters in its written submissions.
21. The Ex parte Applicant has not demonstrated any prejudice that cannot be adequately cured by the admission of both affidavits. Excluding the Replying Affidavit would result in the Court determining the dispute without considering a payment which the Ex parte Applicant itself now accepts was made and must be credited against the decretal sum.
22. Article 159(2)(d) of the Constitution imposes upon courts the duty to dispense justice without undue reliance on technicalities of procedure.
23. I am consequently satisfied that the interests of justice favour the admission of the Replying Affidavit.
24. The Replying Affidavit sworn by Alfred Nyandieka on 16th June 2026 and the Further Affidavit sworn by Richard Ombati on 30th June 2026 are therefore admitted as properly filed. The prayer seeking the arrest or postponement of judgment has been overtaken by events.
E. Whether Mandamus Should Issue
25. The nature and scope of an order of mandamus were laid down by the Court of Appeal in Kenya National Examinations Council v Republic, ex parte Geoffrey Gathenji Njoroge & 9 others [1997] KECA 58 (KLR). Mandamus is a writ which compels the performance of a public duty imposed by law where the person or body upon whom the duty is imposed has failed or refused to perform it. The order cannot command the performance of a duty in a manner inconsistent with the law or compel a public authority to do more than it is legally bound to do.
26. Section 21(1) of the Government Proceedings Act provides for the procedure for execution of a decree against Government . It provides for the issuance of a Certificate of Order Against the Government after the lapse of the prescribed period following the making of an order against the Government.
27. Under section 21(3), where a Certificate of Order Against the Government has been issued, the accounting officer of the relevant Government department is required, subject to the provisions of the Act, to pay the amount appearing in the certificate together with any interest lawfully due thereon.
28. Section 21(4) prohibits execution, attachment or similar process against Government property. Section 21(5) extends the provisions of section 21, with the necessary modifications, to county governments.
29. The combined effect of these provisions is that a decree-holder cannot employ the ordinary modes of execution against a county government. Once the decree-holder has obtained the prescribed certificate, served it and payment is not forthcoming, an order of mandamus is the principal means through which the responsible public officers may be compelled to perform the statutory duty of satisfying the decree.
30. In Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security, ex parte Fredrick Manoah Egunza [2012] KEHC 1643 (KLR), the Court held that once the statutory procedure has been complied with, the duty of the accounting officer to satisfy the decree is not conditional upon the availability of a subsequent budgetary allocation. A judgment creditor should not be indefinitely denied the fruits of a judgment by the public authority’s failure to make the necessary financial arrangements.
31. In Greenwood Printers & Stationers Ltd v Independent Electoral and Boundaries Commission [2022] eKLR, the Court ordered payment of the amount appearing in the Certificate of Order Against the Government after deducting sums already received by the decree-holder. That decision confirms that partial satisfaction of a decree does not extinguish the public duty to pay the outstanding balance.
32. A similar approach was adopted in Multiline Services Limited v Nairobi City County Government [2025] KEHC 9325 (KLR), where the Court issued an order of mandamus for the outstanding balance of a partially satisfied decree. The Court held that requests for further time, unsupported by evidence of a concrete payment arrangement or steps taken towards budgetary provision, did not constitute a defence to the enforcement of a lawful decree.
33. In the present case, the following facts are not disputed:
a. A final arbitral award was published on 20th May 2021;
b. The arbitral award was recognised and adopted as a judgment and decree of this Court on 7th November 2023;
c. There is no evidence that the judgment or decree has been stayed, varied, reviewed or set aside;
d. The Ex parte Applicant’s costs were taxed;
e. A Certificate of Order Against the Government was issued on 25th July 2024;
f. A demand for payment was made upon the County Government; and
g. The decretal sum has not been fully satisfied.
35. I am consequently satisfied that the conditions precedent for the grant of an order of mandamus have been established.
F. Effect of the Payment of Kshs.5,771,845.28
36. The Ex parte Applicant’s original Motion sought payment of the entire amount appearing in the Certificate of Order Against the Government. It did not disclose that it had previously received Kshs.5,771,845.28 from the County Government.
37. That payment is material to this case A party invoking the Court’s judicial review jurisdiction, particularly one seeking a discretionary remedy, is under a duty to make a candid and complete disclosure of all material facts.
38. In Republic v Kenya Medical Training College & another, ex parte Kenya Universities and Colleges Central Placement Service [2015] eKLR, the Court emphasised that an applicant for judicial review relief is required to approach the Court with utmost good faith and disclose all material facts relevant to the exercise of the Court’s discretion.
39. The omission in the present case exposed the Court to the risk of issuing an order for an amount exceeding what was lawfully outstanding.
40. Nevertheless, the payment has now been placed before the Court, the Ex parte Applicant acknowledges it and the final orders can be framed in a manner that fully credits the Respondents with the amount paid. The omission is therefore relevant to the terms of the relief and to costs, but it does not, by itself, extinguish the subsisting decree or the statutory duty to pay the outstanding balance.
G. Allegations of Fraud and Irregularity
41. The County Attorney states that the payment of Kshs.5,771,845.28 was processed through letters signed in his name without his knowledge or authority.
42. Fraud is a serious allegation. It must be distinctly pleaded and strictly proved. Although the standard of proof does not ordinarily rise to proof beyond reasonable doubt, it is higher than proof on a mere balance of probabilities. Fraud cannot be inferred from suspicion, conjecture or general allegations. See Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] KECA 5 (KLR).
43. In the present proceedings, the Respondents did not place before the Court a report from a document examiner, a police complaint, an investigation report, evidence of disciplinary proceedings or affidavits from the officers who processed and approved the payment. The record contains letters dated 5th June 2023 and 13th July 2023 signed for the County Attorney, a payment voucher, certification by the County Works Officer and approvals by officers within the County Treasury.
44. The said documents do not conclusively determine whether the payment was properly authorised. They nevertheless demonstrate that the transaction passed through several levels of the County Government’s administrative and financial structures. The evidential record is therefore insufficient for the Court to make a definitive finding, in these judicial review proceedings, that the Ex parte Applicant procured the payment through fraud, forgery or collusion.
45. The Auditor-General’s report raises legitimate concerns regarding the County Government’s internal controls, record keeping, supporting documentation, completion of the works and value for money. An audit query is, however, not equivalent to a judicial determination that the Ex parte Applicant committed fraud or forged documents.
46. Nor does the audit query, without an order setting aside or varying the decree, extinguish the obligation arising from the judgment and the Certificate of Order Against the Government.
47. The Ex parte Applicant is not entitled to recover more than is lawfully outstanding. The admitted payment must therefore be fully credited against the certified amount so as to prevent double recovery.
48. The proposed Set-Off Agreement and proposed consent terms were not executed by the parties. They cannot, therefore, be enforced as a binding compromise. At most, they demonstrate that the parties had contemplated taking the partial payment into account when determining the outstanding balance.
49. Should the County Government consider that the payment was procured through fraud, forgery, misrepresentation or collusion, it remains at liberty to institute appropriate recovery proceedings or to take any other lawful administrative, civil or criminal action. Those issues cannot, however, be conclusively determined on the affidavit evidence presently before the Court.
50. The just course is therefore to enforce the subsisting decree while giving the County Government full credit for the amount already paid.
H. Proper Officers, Amount Payable and Interest
52. Section 21(3) of the Government Proceedings Act places the duty of satisfying a Certificate of Order Against the Government upon the accounting officer of the relevant Government department or entity.
53. Under section 148 of the Public Finance Management Act, the County Executive Committee Member for Finance is required to designate accounting officers for county government entities and to ensure that each entity has an accounting officer responsible for its financial management. The person responsible for the administration of a county government entity is ordinarily designated as its accounting officer.
54. The County Executive Committee Member for Finance is not, merely by virtue of holding that office, necessarily the accounting officer of every county government entity. The statutory duty of actual payment rests with the accounting officer duly designated under section 148 of the Public Finance Management Act.
55. Kenyan courts have nevertheless recognised that the County Secretary and the relevant officers responsible for county finance may properly be required, in their official capacities, to facilitate the satisfaction of lawful decrees through the designated accounting officer. See Republic v County Secretary, Migori County Government & another, ex parte Linet Magambo [2020] eKLR and Mwangi Njenga & Company Advocates v County Secretary, Mombasa County Government & another [2023] KEHC 22138 (KLR).
56. The order of mandamus shall therefore be directed to the Respondents in their official capacities, requiring them to take all lawful administrative and financial steps necessary to ensure that the Certificate of Order Against the Government is satisfied through the accounting officer duly designated under section 148 of the Public Finance Management Act.
57. The order does not impose personal liability upon the current holders of the offices of County Secretary or County Executive Committee Member for Finance.
58. The Court cannot order payment of the entire sum of Kshs.34,131,922 appearing in the Notice of Motion because that would disregard the admitted payment of Kshs.5,771,845.28.
59. The arithmetic balance obtained by deducting the admitted payment from the certified amount is:
Kshs.34,131,922.00 Less Kshs.5,771,845.28 Balance: Kshs.28,360,076.72
60. The figure of Kshs.28,360,076.72 is subject only to the proper reconciliation of interest in accordance with the arbitral award, the decree and the Certificate of Order Against the Government, and to the deduction of any further payments made after the commencement of these proceedings.
61. The Ex parte Applicant prayed for interest at 12% per annum from 25th July 2024. The arbitral award adopted as the decree of the Court provided for simple interest at 11.99% per annum on the sums and for the periods specified in the award.
62. These proceedings are for the enforcement, rather than the alteration, of the decree. The Court cannot enlarge the substantive terms of the adopted arbitral award by substituting an interest rate of 12% for the rate of 11.99% contained in the award and decree.
63. The Ex parte Applicant is therefore entitled only to interest lawfully accruing in accordance with the arbitral award, the decree and the Certificate of Order Against the Government. Section 21(3) of the Government Proceedings Act similarly limits payment to the amount appearing in the certificate together with interest, if any, lawfully due thereon.
64. In the case of Greenwood Printers & Stationers Ltd v Independent Electoral and Boundaries Commission [2022] KEHC 26922 (KLR) , it was held that ‘’ It cannot be disputed that the respondent relies on funds from the National Treasury which funds are budgeted for in advance. It is also true that the process consumes time.’’ I will thus grant the respondent reasonable time to process the funds from national treasury and make payment which is long over due
65. Any dispute confined solely to the arithmetic computation of the outstanding balance may be placed before the Deputy Registrar for settlement. Such computation shall not reopen, vary or reconsider the merits of the arbitral award or decree.
I. Costs
65. The general principle under section 27 of the Civil Procedure Act is that costs follow the event, subject to the Court’s discretion.
66. The Ex parte Applicant has succeeded in establishing its entitlement to an order of mandamus for the outstanding balance.
67. Nevertheless, its failure to disclose the substantial partial payment when it instituted proceedings seeking enforcement of the entire certified amount was material and deprived the Court of a complete account of the payments already made.
68. The Respondents, on the other hand, have failed to satisfy a valid decree for a considerable period. They also advanced grave allegations of fraud and forgery without placing sufficient evidence before the Court to justify a definitive finding against the Ex parte Applicant.
69. In those circumstances, the appropriate order is that each party shall bear its own costs.
J. Disposition
70. In the result, the Court makes the following orders:
a. The Respondents’ Notice of Motion dated 22nd June 2026 is allowed to the extent that the Replying Affidavit sworn by Alfred Nyandieka on 16th June 2026 is admitted as properly filed.
b. The prayer seeking the arrest or postponement of judgment is spent.
c. The Further Affidavit sworn by Richard Ombati on 30th June 2026 is admitted as properly filed.
d. The Ex parte Applicant’s Notice of Motion dated 22nd May 2025 partially succeeds.
e. An order of mandamus is hereby issued compelling the 1st and 2nd Respondents, in their official capacities, to take all lawful administrative and financial steps necessary to ensure that the accounting officer duly designated under section 148 of the Public Finance Management Act satisfies the Certificate of Order Against the Government issued on 25th July 2024.
f. In satisfying the Certificate, full credit shall be given for the sum of Kshs.5,771,845.28 paid to the Ex parte Applicant on or about 14th September 2023 and for any other payments subsequently made.
g. For avoidance of doubt, the arithmetic balance obtained by deducting Kshs.5,771,845.28 from the certified sum of Kshs.34,131,922 is Kshs.28,360,076.72, subject to the proper reconciliation of interest in accordance with the arbitral award, the decree and the Certificate of Order Against the Government.
h. Interest shall accrue strictly in accordance with the arbitral award, the decree and the Certificate of Order Against the Government. The claim for interest at 12% per annum, to the extent that it exceeds or varies the terms of the award and decree, is declined.
i. The outstanding amount shall be fully paid within six months from the date of service of this order upon the Respondents and the accounting officer duly designated under section 148 of the Public Finance Management Act.
j. The Certificate of Order Against the Government shall be treated as having been partially satisfied to the extent of Kshs.5,771,845.28 and any further payments made by the County Government.
k. In the event of a dispute confined solely to the arithmetic computation of the outstanding balance, either party may place its computation before the Deputy Registrar for settlement in accordance with the arbitral award, the decree, the Certificate of Order Against the Government and the payments made.
m. Each party shall bear its own costs of the two applications.
71. It is so ordered.
T. A. ODERA JUDGE
14.7.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 14 TH DAY OF JULY 2026 IN THE PRESENCE OF :
MR OCHIENG FOR THE APPLICANT . N/A FOR RESPODENT CA BUSIENEI
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