Coram: Before Justice R. Nyakundi
M/S KMK Law LLP
RULING
1. Before this Court is Notice of Motion dated 17th day of February 2026 expressed to be brought under Order 53 Rules 3(1) and (3), and 4(1) of the Civil Procedure Rules, Sections 1A, 1B 3A of the Civil Procedure Act (Cap. 21 of the Laws of Kenya) Section 8 and 9 of the Law Reform Act (Cap. 26 of the Laws of Kenya), Section 7 and 9 of the Fair Administrative Action Act No. 4 of 2015 and all other enabling provisions of the law where ex parte Applicant who seeks the following orders:
a. AN ORDER of Order of mandamus commanding the Chief Finance Officer, Department of Trade, Chief Finance Officer Department of Commerce and the County Executive Committee Member for Finance, County Government of Vihiga to settle the decretal sum together with interest and costs as awarded in Vihiga CMCC E028 of 2025 as follows; a. Kenya Shillings Three Million Nine Hundred and Sixty Three Thousand Seven Hundred and Fourteen and Twenty Cents (3,963,714.20 ) plus interest from the 10th of February, 2025 until the date of payment being the decretal sum and b. Kenya Shillings Two Hundred and Forty Nine Thousand Seven Hundred and Ninety Two and Eighty Six Cents (249,792.86/-) Interest is payable on the said costs from the 21st January, 2026.
b. Cost of this application.
2. This Judicial Review Application is brought before the High Court at Vihiga, is instituted by the ex-parte applicant, Nemi Services Limited (represented by KMK Law LLP), against key financial accounting officers of the County Government of Vihiga. The named respondents are the Chief Finance Officer for the Department of Commerce, the Chief Finance Officer for the Department of Trade, and the County Executive Committee Member for Finance. Grounded under the County Governments Act 2012, the Public Finance Management Act 2012, and the Fair Administrative Action Act 2015, the applicant seeks an Order of Mandamus to compel these officers to settle an outstanding judgment debt arising from civil proceedings.
3. The underlying dispute stems from garbage cleaning services rendered by Nemi Services Limited to the County Government of Vihiga, for which payment was withheld. The applicant filed suit in Vihiga CMCC E028 of 2025 to recover the debt. Although the county administration filed a defense, they defaulted on attending the hearing, resulting in judgment being entered against them on 15th October 2025 and a formal decree issued on 28th January 2026. The decree awards a principal decretal sum of Kshs 3,963,714.20 with interest accruing from 10th February 2025 until full payment, as well as assessed costs of Kshs 249,792.86 with interest running from 21st January 2026.
4. Despite being formally served with a Certificate of Order, the respondents have persistently failed, neglected, or refused to satisfy the judgment debt or offer a settlement structure, nor have they lodged an appeal against the decree. The statutory statement emphasizes that Order of Mandamus is the sole legal execution process available against a County Government, as ordinary execution mechanisms (such as the attachment of public assets) are statutorily prohibited. Because individual public officers carry no personal liability, named accounting officers must be specifically commanded by judicial order to fulfill their statutory duty under the Public Finance Management Act and discharge the liability from public funds.
5. Continued non-payment directly deprives the applicant of its constitutional right to access and enjoy the fruits of a lawful judgment. Moreover, Nemi Services Limited faces severe financial jeopardy, as its own creditors are actively pursuing civil execution against the firm due to unpaid liabilities. Given that the application was filed without unreasonable delay, the balance of probability favors the applicant, and no prejudice will be suffered by the county government in performing its legal duty, the applicant contends that granting the writ of mandamus is necessary to ensure justice and equity.
6. In support of the application is the annexed affidavit of Nelson Chahilu Kabala who deponed as follows:
a. THAT I am a male adult of sound mind and a director of NEMI SERIVES LIMITED and having the relevant authority to swear affidavit on behalf of the Applicant thus competent to swear this affidavit.
b. THAT I have read and understood the Notice of Motion and Statutory Statement and verify that the information contained therein is true and correct as per my instructions to the Advocates on record.
c. THAT I initiated a civil suit against the County Government of Vihiga in CMCC E028 of 2025 for which I sort payments after delivery of garbage cleaning services to the County Government.
d. THAT in the suit I sort for a sum of Kenya Shillings Three Million Nine Hundred and Sixty-Three Seven Hundred and Fourteen and Twenty Cents (3,969,714.20/-)
e. THAT I further sort interest from the date the amount being came due to payment in full.
f. THAT the Respondent filed their defence but did not turn up during the hearing and judgment was entered against them on the 15th of October, 2025 and a subsequent decree issued on the 28th of January 2026.
g. THAT the Respondent was ordered to pay a sum of Kenya Shillings Three Million Nine Hundred and Sixty-Three Thousand Seven Hundred and Fourteen and Twenty Cents (3,969,714.20) Plus interest from the 10th of February, 2025 until the date of payment.
h. THAT I further proceeded to have the costs assessed and which were assessed at of Kenya Shillings Two Hundred and Forty-Nine Thousand Seven Hundred and Ninety-Two and Eighty-Six Cents (249,792.86/-) Interest is payable on the said costs from the 21st January, 2026.
i. THAT I proceeded to issue a Certificate of Order to the Respondent on the 11th of February, 2026 but they have failed and or refused to make good the payment thus necessitating these proceedings.
j. THAT my Advocate has filed an Affidavit of Service to that effect.
k. THAT the Respondents have not shown interest in making payment or proposing a mode of payment.
l. THAT execution cannot issue against the Respondent's employer it being a County Government.
m. THAT the writ of Mandamus is the only known mode of execution as against a County Government.
n. THAT presently no officer is personally liable and or obligated to settle the decretal sum together with interest and costs.
o. THAT it will take inordinate amount of time to get paid if no specific officer is commanded by the court to pay
p. THAT the Respondents and the County Government will not suffer any prejudice if the orders sought herein are granted.
q. THAT the Applicant is highly indebted and the creditors are in its hot pursuit with threat for commencement of civil proceedings and execution hanging on its head.
r. THAT it is in the interest of justice the orders herein be granted.
s. THAT the applicant has shown a prima facie case deserving the orders sought.
7. In answer to the application the following affidavits were filed. First is by Aggrey B. L. Musiega on July 29, 2026, who is the County Attorney of Vihiga County. The affidavit responds to High Court summons issued in Judicial Review Application No. E002 of 2026 regarding the quality of legal representation provided by his office in a suit involving Nemi Services Limited. The County Attorney outlines that under Sections 4, 7, 8, and 14 of the Office of the County Attorney Act No. 14 of 2020, he acts as principal legal advisor and performs his duties through lawful delegation to County Legal Counsels. Pursuant to an internal delegation instrument dated August 5, 2024, legal matters for the Department of Trade where the claim originated were assigned to County Legal Counsel Teresiah Shijenje Mutola. While the County Attorney drafted the initial statement of defence, full carriage and management of the suit across both the lower court and High Court were entrusted to Counsel Mutola to handle independently.
8. Upon receiving the High Court summons, the County Attorney issued a formal query on July 28, 2026, directing Counsel Mutola to provide a written explanation regarding her handling of the matter. She failed to respond and separated from service following a resignation notice tendered on June 30, 2026 (effective July 31, 2026). A review of the court files confirmed that the lower court suit had proceeded ex-parte in Mutola's absence, resulting in an adverse judgment currently under execution. However, the records also showed that Mutola had filed an application on January 23, 2026, seeking to set aside the ex-parte judgment because she was on compassionate leave when the hearing date was set and had never been served with a hearing notice. The County Attorney affirms that owing to short notice he could not immediately verify the status of that application, though he exercised all reasonable diligence required of his position.
9. Addressing the substantive dispute, the County Attorney asserts that the County Government possesses a strong defence against Nemi Services Limited’s claim for Kshs 3,963,714.20 for garbage collection, maintaining that the claim is built on fabricated and fraudulent documentation. Although the applicant’s plaint alleged a contract award on April 21, 2019, for services starting April 1, 2019, such retrospective awarding indicates backdated fraud. The actual letter of award produced is dated April 8, 2019, and required written acceptance within seven days, which was never provided. Former Chief Officer Philip Gavuna confirmed no such tender was ever awarded, the purported agreement signed on April 23, 2019, expired after 90 days without an extension, the supporting delivery notes were in identical handwriting with only eight falling within the valid period, and the offices named as respondents are non-existent entities.
10. In conclusion, the County Attorney contends that the ex-parte judgment and execution proceedings remain open to legal challenge. He prays for a stay of execution to allow the lower court to determine the pending application to set aside the judgment or to enable an appeal, thereby averting financial loss and severe injustice to the County Government of Vihiga.
Decision
11. I have reviewed the application under the judicial review jurisdiction by the ex-parte Applicant together with documentary evidence in support of the alleged contract as entered with the Respondent on delivery of garbage collection services. In the same breadth there is a judgment by the trial Court entered on the 15th day of October 2025 in which she pronounced herself as follows: Whether the Plaintiff/exparte Applicant was entitled to the reliefs sought.
Whether the Plaintiff is entitled to the reliefs sought.5. The Plaintiff seeks judgment against the Defendant for payment of Kshs. 3,963,714.20/-,interest from date the amount became due and costs of the suit.6. I rely on the case of Hahn v Sign (1985) KLR 719 where it was held as follows;"...special damages which must not only be claimed specifically but proved strictly for they are not the direct natural but probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the act themselves..."1. In addition, it is trite law that he who alleges must prove as provided under Section 107 of the Evidence Act Cap 80 of Laws of Kenya which states that;"...on the existence of facts which he asserts must prove that those facts exist.(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person..."1. I find that the contract form, award letter, delivery notes, reconciliation of pending bills. schedule and demand letter all corroborate the existence of a service contract between the parties herein which is still unpaid by the Defendant.2. In the absence of a contractual obligation to pay interest, the statutory basis on which a court awards interest is to be found in Section 26 of the Civil Procedure Act which provides that;-
“(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rale as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit."1. The Plaintiff claims interest from the date when the amount became due. In this instance the breach of contract has been found to fall due fourteen days after the demand notice was received on 5t December 2024.However, the contract does not provide for interest accruing for non-payment. It is silent on that. 2. I am guided by the case of South Nyanza Sugar Company Limited v Oreko (Civil Appeal from the date of filing of the suit as the claim is for special damages. The interest is to be calculated at Court's rates. 3. Section 27 (1) of the Civil Procedure Act Cap. 21 holds that costs follow the events. In this case the Plaintiff has proved its case and is awarded costs.4. Consequently, judgement is entered in favor of the Plaintiff as against the Defendant as follows; 5. Judgement is entered against the Defendant in the sum of Kshs.3,963,714.20/=. 6. Costs and interest of the suit at court rates from the date of filing until payment in full.
12. This is the judgment which is the subject matter of this judicial review by the ex-parte Applicant. From the Respondent’s perspective, there is no evidence that the ex-parte Applicant complied with procedural protocols on enforcement of the judgment. The Respondents have gone further to state in their respective affidavits that no such contract was signed between the ex-parte Applicant and the County Government to warrant execution of the decree issued by the Court to settle the judgment debt.
13. The import of the affidavits by the Respondents is that the impugned judgment subject of this judicial review proceedings should be set aside as their defence seems not to have been considered. The guiding principles for setting aside judgments are now well settled as can be appreciated from the following legal scenarios:
Regular vs. Irregular Judgments:
• If a judgment is irregular (e.g., entered prematurely or without proper service of summons), the court must set it aside as a matter of right (ex debito justitiae).
• If a judgment is regular, the court exercises an unfettered, judicial discretion meant to avoid injustice or hardship.
Nature of Defence: The applicant must show a reasonable defense or triable issues that deserve a hearing on the merits rather than locking out a party prematurely.
Explanation for Delay: The court considers whether the delay in bringing the application is inordinate and whether any delay or inconvenience caused to the respondent can be compensated by an award of costs.
Conduct of Parties: Discretion will not be exercised to assist a person guilty of deliberate obstruction of justice or deliberate bad conduct.
Overriding Objective: Courts consistently favor the resolution of disputes on their merits rather than penalizing parties through final default outcomes.
14. Unfortunately, the record does not show that the Respondents have moved the Court in any way to set aside the regular or the irregular judgment as the case may be from their disposition in their affidavit. The principles guiding the exercise of that discretion are settled. In Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, the Court of Appeal held that the discretion to set aside is wide and is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a person who has deliberately sought to obstruct or delay the course of justice.
15. This Court has also not been served with an order of stay of execution of the judgment of this Court notwithstanding all those averments in the affidavits by the Respondents. The law in Kenya is now well settled insofar as both regular and irregular judgments is concerned. The ex-parte Applicant has already a judgment from the trial Court which showed that the Respondent filed defence and soon thereafter took flight from the Court’s jurisdiction. The same litigation policy under the Civil Procedure Act provides the pathway of litigation for a party who has been properly served but proceeds to take responsibility under Article 50 of the Constitution to participate in the proceedings within the scope of the procedural and substantive law. The ex-parte Applicant is before this Court placing reliance on the following instruments: the decree of the Court arising out of MCC/E028/2025 in which the Court ordained itself as follows:
CLAIM for Kenya Shillings THREE MILLION, NINE HUNDRED AND SIXTYTHREE THOUSAND SEVEN HUNDRED AND FORTEEN AND TWENTY CENTSONLY [3,963,714.20/= ONLY, COSTS AND INTERESTBY JUDGMENT of this Court dated the 15th day of OCTOBER, 2025
IT IS HEREBY ORDERED AND DECREED THAT COUNTY GOVERNMENT OF VIHIGA the defendant herein do pay to the Plaintiff
The sum of Kenya shillings 3,963,714.20/= only, from the 4th day of MARCH, 2025.
Principal Amount............3,963,714.20/=
Interest as Above............509,310.00/=
Decretal Amount......4.473,024.20 together with costs which has been assessed at Ksh 249,792.86/=.
16. This legal instrument provides the framework upon which exparte Applicant is seeking leave of this Court to move under judicial review jurisdiction for a writ of mandamus the answer by the Respondent is that the Judgment which is being relied upon by the exparte Applicant is irregular and asserted as such in the affidavits. This also happened to have taken place when the Court insisted that personal attendance of the Respondents be sought to explain why the decree remains unsettled. In my considered view, the impugned contract apparently seems to have been awarded in 2019 and that is not a short time for any measure. In the same record, when the ex-parte Applicant moved to Court both at the Lower Court and the High Court service had actually been effected without default. In the case of the High Court proceedings, there is evidence of an affidavit of service dated which reads as follows:
I, Muguro Irungu of P. O. Box 14636-00800 Westlands within the Republic of Kenya do hereby make oath and state as follows:
1. THAT I am an adult male of sound mind hence competent to swear this affidavit.
2. THAT I am an Advocate of the High Court practicing in the name and style of KMKLAW LLP and having conduct of this matter.
3. THAT on the 11th day of February, 2026 I served upon the County Attorney, Vihiga County with Certificate of Order dated 10th February, 2026.
4. THAT I served the documents via their known email address:vihigacountyattorney@gmail.com.(Annexed herewith and marked "MI-1" is a copy of the email print-out.)5. THAT what is deponed herein above is true to the best of my knowledge, information and belief whereof otherwise stated.
17. This inordinate delay by the Respondents not to make good the necessary application with regard to the valid judgment pronounced by the trial Court has not explained and the issue of the legal Counsel none availability to prosecute the justiciable issues before the Court cannot be a ground for this High Court to stay the judicial review proceedings which is based on the judgment of the trial Court.
18. The proper forum of conveniens on all those issues being litigated by the Respondents remains to be the trial Court. As a matter of emphasis, if indeed what the Respondents are alleging is true, they should have approached the originating Court of the judgment for a stay of execution of the decree. The originating court—meaning the exact same forum that granted or entered the judgment—is the proper forum to adjudicate an application to set aside both regular and irregular judgments. An applicant should not bypass this by filing a fresh suit or going straight to an appellate court unless specifically appealing a refused application to set aside.
19. Core distinctions and proper forum rules which govern the issues being pleaded in the affidavits by the Respondents is as stipulated herein below:
Judgment Type Definition Proper Forum & Remedy Key Legal Principle
Irregular Judgment Entered in violation of procedural rules (e.g., no service of summons, premature entry, or lack of notice). The Originating Court. Must be set aside ex debito justitiae (as a matter of right) upon application or by the court's own motion. The court does not evaluate the merits of the defense or delays; the breach of natural justice (audi alteram partem) voids the process.
Regular Judgment Entered in strict compliance with procedural rules, but the defendant failed to appear or defend. The Originating Court. The court exercises its unfettered judicial discretion to vary or set it aside. The applicant must satisfy the court that they have a prima facie triable defense on the merits and a reasonable explanation for the delay.
20. This litigation roadmap has not been pursued by the Respondents to warrant the judicial review Court to put brakes on the reliefs being sought by the exparte Applicants, for as reiterated by Lord Diplock in Isaacs v Robertson (1984) W.I.R. PC 128/(1985) AC 97 noted that in Courts of unlimited jurisdiction an order of judgment is either regular or irregular. If it is irregular, it must be set aside by the Court that made it upon a direct application. A person affected has a right (ex debito justiciae) to have that same court nullify its own irregular order. In the realm of domestic jurisdiction the Court of Appeal in James Kanyiita Nderity & Another v Marios Philotas Ghikas & Another (2016) KECA 470 (KLR) reaffirmed the strict jurisdictional handling of both categories. For an irregular default judgment (such as one entered where service was not properly effected), the originating court bears a strict judicial duty to clear its record and set it aside as a matter of right. Conversely, for a regular judgment, the party must move the same court under its statutory provisions to invoke discretionary relief.
21. This is not the right forum of adjudication as provided for under Article 50(1) of the Constitution. Hence, the Respondents’ case cannot even be saved by provisions of Article 159 of the Constitution which lays out the guiding principles the strict jurisdictional handling of both categories. For an irregular default judgment (such as one entered where service was not properly effected), the originating court bears a strict judicial duty to clear its record and set it aside as a matter of right. Conversely, for a regular judgment, the party must move the same court under its statutory provisions to invoke discretionary relief.
“This latter edict, that justice is to be administered without undue regard to procedural technicalities, has sparked significant debate and controversy given that there have been numerous instances where litigants have seemingly thrown procedural rules and con- straints to the wind and nonetheless expected favourable out- comes on the substance of the dispute. This issue was addressed in Raila Odinga & 5 Others v IEBC & Others (2013) eKLR in which the Court had this to say on the effect of Article 159 of the Constitution:
“Our attention has repeatedly been drawn to the provisions of Article 159(2) (d) of the Constitution which obliges a court of law to admin- ister justice without undue regard to procedural technicalities. The op- erative words are the ones we have rendered in bold. The Article simply means that a Court of law should not pay undue attention to procedur- al requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the Courts of law …”
22. The affidavits assertion on the invalidity of the judgment pronounced by the trial Court remains what they are until there is a review by the same Court as provided for under the legal and statutory framework in our legal system. That pillar on non-existent of a contract which formed the basis of the impugned judgment and subsequent decree extracted by the ex-parte Applicant as agitated by the Respondents is as of now submissions and evidence being adduced in the wrong forum and therefore has no legal effect. It is a litigation anchored on sinking sand.
23. The second limb is to consider the merits of the judicial review jurisdiction which essentially can be stated to provide the following pathway in our legal system. Thus:
Judicial Review is the authority vested in the Courts in appropriate proceedings before it, to declare a decision or action by an authoritative body either contrary to, or in accordance with, the Constitution or other governing law with the effect of rendering the decision invalid or vindicating its validity. Put simply, it gives effect to the Constitutional principle of checks and balances. Judicial Review is primarily concerned with the decision-making process and as such, when Courts conduct Judicial Review proceedings, they are in essence ensuring that the decisions made by the relevant bodies in authority are lawful. Consequently, should the Courts find that a decision made by a body is unlawful (be it for reasons such as disregarding procedural technicalities), then the Courts can set aside that decision. The role of the Court is therefore supervisory, and the Court is refrained from delving into a merit review or adopting an appellate approach – which is ordinarily not the function of Judicial Review.
24. At the outset, it may be noted that the Respondents have chosen to raise some new grounds before this Court despite the judicial review application involving questions of execution and enforcement of the decree issued by a competent Court. The County Government is recognized under the Constitution and as an entity there are both procedural and substantive guidelines on how to enforce a decree in which it has been found culpable under our established administration of justice protocols. It is thus well settled that the Constitutional Courts in Kenya while exercising their powers of judicial review do not assume the role of an appellate jurisdiction. Put differently, judicial review is not an analogous to venturing into the merits of a case like an appellate Court.
25. The prerogative writ being sought by the ex-parte Applicant is one of mandamus whose key principles include:
• Legal Right and Duty: A writ of mandamus requires a clear legal right in the petitioner and a corresponding public or statutory duty on the respondent.
• No Alternative Remedy: It is issued only when the applicant has no other equally efficient, convenient, and adequate remedy.
• Discretionary Control: Courts use mandamus to correct failures to exercise power or instances of improper, unlawful, or arbitrary administrative action.
• Separation of Powers: Courts cannot use mandamus to direct the legislature or executive to enact laws or usurp core policy-making functions
26. A strong and impartial judiciary is a sine qua non of any government. Judiciary plays a key role in deciding the stipulates between the citizens and between a citizen and state. In today’s age, the administration plays an essential role in every individual’s life. Administrative laws are also expanding to meet the demands of new conditions. Judicial review is an integral component of the rule of law. The grounds for judicial review are implicit in the Fair Administrative Action Act of Kenya and the various progressive jurisprudence developed over time by the Courts in Kenya. They include the following:
a) Jurisdictional error: Where the tribunal or authority holds no power or jurisdiction at all to pass an order. The court may review this administrative action on the ground that the authority exercised jurisdiction which it was not supposed to.
b) Irrationality: The definition of the irrationality ground of judicial review recognizes the constitutional principle of the separation of powers, in allowing for judicial control of the executive only very rarely.
c) Procedural impropriety: It is a failure to comply with the laid down procedures. Procedural Impropriety is to cover two areas which are failure to observe rules given in statute and to observe the basic common-law rule of justice.
d) Proportionality: Proportionality means that the concerned administrative action should not be more forceful than it requires to be. The principle of proportionality implies that the court has to necessarily go into the advantages and disadvantages of the action called into question. Unless the so-called administrative action is advantageous and in the public interest, such an action cannot be upheld. This doctrine tries to balance means with ends.
e) Legitimate expectation: This doctrine serves as a ground of judicial review to protect the interest when a public authority rescinds from a representation made to a person. A legitimate expectation arises in the mind of the complainant who has been led to understand expressly or impliedly that certain procedures will be followed in reaching a decision. The expectation has a reasonable basis. This doctrine has evolved to give relief to the persons who have been wronged because of the violation of their legitimate expectation and have not been able to justify their claims on the basis of law.
27. In the application before Court the ex-parte Applicant seeks leave of this Court for issuance of a writ of mandamus which basically means ‘to command the public authority’ to perform its duty. It is a command gi
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M/S KMK Law LLP
RULING
1. Before this Court is Notice of Motion dated 17th day of February 2026 expressed to be brought under Order 53 Rules 3(1) and (3), and 4(1) of the Civil Procedure Rules, Sections 1A, 1B 3A of the Civil Procedure Act (Cap. 21 of the Laws of Kenya) Section 8 and 9 of the Law Reform Act (Cap. 26 of the Laws of Kenya), Section 7 and 9 of the Fair Administrative Action Act No. 4 of 2015 and all other enabling provisions of the law where ex parte Applicant who seeks the following orders:
a. AN ORDER of Order of mandamus commanding the Chief Finance Officer, Department of Trade, Chief Finance Officer Department of Commerce and the County Executive Committee Member for Finance, County Government of Vihiga to settle the decretal sum together with interest and costs as awarded in Vihiga CMCC E028 of 2025 as follows; a. Kenya Shillings Three Million Nine Hundred and Sixty Three Thousand Seven Hundred and Fourteen and Twenty Cents (3,963,714.20 ) plus interest from the 10th of February, 2025 until the date of payment being the decretal sum and b. Kenya Shillings Two Hundred and Forty Nine Thousand Seven Hundred and Ninety Two and Eighty Six Cents (249,792.86/-) Interest is payable on the said costs from the 21st January, 2026.
b. Cost of this application.
2. This Judicial Review Application is brought before the High Court at Vihiga, is instituted by the ex-parte applicant, Nemi Services Limited (represented by KMK Law LLP), against key financial accounting officers of the County Government of Vihiga. The named respondents are the Chief Finance Officer for the Department of Commerce, the Chief Finance Officer for the Department of Trade, and the County Executive Committee Member for Finance. Grounded under the County Governments Act 2012, the Public Finance Management Act 2012, and the Fair Administrative Action Act 2015, the applicant seeks an Order of Mandamus to compel these officers to settle an outstanding judgment debt arising from civil proceedings.
3. The underlying dispute stems from garbage cleaning services rendered by Nemi Services Limited to the County Government of Vihiga, for which payment was withheld. The applicant filed suit in Vihiga CMCC E028 of 2025 to recover the debt. Although the county administration filed a defense, they defaulted on attending the hearing, resulting in judgment being entered against them on 15th October 2025 and a formal decree issued on 28th January 2026. The decree awards a principal decretal sum of Kshs 3,963,714.20 with interest accruing from 10th February 2025 until full payment, as well as assessed costs of Kshs 249,792.86 with interest running from 21st January 2026.
4. Despite being formally served with a Certificate of Order, the respondents have persistently failed, neglected, or refused to satisfy the judgment debt or offer a settlement structure, nor have they lodged an appeal against the decree. The statutory statement emphasizes that Order of Mandamus is the sole legal execution process available against a County Government, as ordinary execution mechanisms (such as the attachment of public assets) are statutorily prohibited. Because individual public officers carry no personal liability, named accounting officers must be specifically commanded by judicial order to fulfill their statutory duty under the Public Finance Management Act and discharge the liability from public funds.
5. Continued non-payment directly deprives the applicant of its constitutional right to access and enjoy the fruits of a lawful judgment. Moreover, Nemi Services Limited faces severe financial jeopardy, as its own creditors are actively pursuing civil execution against the firm due to unpaid liabilities. Given that the application was filed without unreasonable delay, the balance of probability favors the applicant, and no prejudice will be suffered by the county government in performing its legal duty, the applicant contends that granting the writ of mandamus is necessary to ensure justice and equity.
6. In support of the application is the annexed affidavit of Nelson Chahilu Kabala who deponed as follows:
a. THAT I am a male adult of sound mind and a director of NEMI SERIVES LIMITED and having the relevant authority to swear affidavit on behalf of the Applicant thus competent to swear this affidavit.
b. THAT I have read and understood the Notice of Motion and Statutory Statement and verify that the information contained therein is true and correct as per my instructions to the Advocates on record.
c. THAT I initiated a civil suit against the County Government of Vihiga in CMCC E028 of 2025 for which I sort payments after delivery of garbage cleaning services to the County Government.
d. THAT in the suit I sort for a sum of Kenya Shillings Three Million Nine Hundred and Sixty-Three Seven Hundred and Fourteen and Twenty Cents (3,969,714.20/-)
e. THAT I further sort interest from the date the amount being came due to payment in full.
f. THAT the Respondent filed their defence but did not turn up during the hearing and judgment was entered against them on the 15th of October, 2025 and a subsequent decree issued on the 28th of January 2026.
g. THAT the Respondent was ordered to pay a sum of Kenya Shillings Three Million Nine Hundred and Sixty-Three Thousand Seven Hundred and Fourteen and Twenty Cents (3,969,714.20) Plus interest from the 10th of February, 2025 until the date of payment.
h. THAT I further proceeded to have the costs assessed and which were assessed at of Kenya Shillings Two Hundred and Forty-Nine Thousand Seven Hundred and Ninety-Two and Eighty-Six Cents (249,792.86/-) Interest is payable on the said costs from the 21st January, 2026.
i. THAT I proceeded to issue a Certificate of Order to the Respondent on the 11th of February, 2026 but they have failed and or refused to make good the payment thus necessitating these proceedings.
j. THAT my Advocate has filed an Affidavit of Service to that effect.
k. THAT the Respondents have not shown interest in making payment or proposing a mode of payment.
l. THAT execution cannot issue against the Respondent's employer it being a County Government.
m. THAT the writ of Mandamus is the only known mode of execution as against a County Government.
n. THAT presently no officer is personally liable and or obligated to settle the decretal sum together with interest and costs.
o. THAT it will take inordinate amount of time to get paid if no specific officer is commanded by the court to pay
p. THAT the Respondents and the County Government will not suffer any prejudice if the orders sought herein are granted.
q. THAT the Applicant is highly indebted and the creditors are in its hot pursuit with threat for commencement of civil proceedings and execution hanging on its head.
r. THAT it is in the interest of justice the orders herein be granted.
s. THAT the applicant has shown a prima facie case deserving the orders sought.
7. In answer to the application the following affidavits were filed. First is by Aggrey B. L. Musiega on July 29, 2026, who is the County Attorney of Vihiga County. The affidavit responds to High Court summons issued in Judicial Review Application No. E002 of 2026 regarding the quality of legal representation provided by his office in a suit involving Nemi Services Limited. The County Attorney outlines that under Sections 4, 7, 8, and 14 of the Office of the County Attorney Act No. 14 of 2020, he acts as principal legal advisor and performs his duties through lawful delegation to County Legal Counsels. Pursuant to an internal delegation instrument dated August 5, 2024, legal matters for the Department of Trade where the claim originated were assigned to County Legal Counsel Teresiah Shijenje Mutola. While the County Attorney drafted the initial statement of defence, full carriage and management of the suit across both the lower court and High Court were entrusted to Counsel Mutola to handle independently.
8. Upon receiving the High Court summons, the County Attorney issued a formal query on July 28, 2026, directing Counsel Mutola to provide a written explanation regarding her handling of the matter. She failed to respond and separated from service following a resignation notice tendered on June 30, 2026 (effective July 31, 2026). A review of the court files confirmed that the lower court suit had proceeded ex-parte in Mutola's absence, resulting in an adverse judgment currently under execution. However, the records also showed that Mutola had filed an application on January 23, 2026, seeking to set aside the ex-parte judgment because she was on compassionate leave when the hearing date was set and had never been served with a hearing notice. The County Attorney affirms that owing to short notice he could not immediately verify the status of that application, though he exercised all reasonable diligence required of his position.
9. Addressing the substantive dispute, the County Attorney asserts that the County Government possesses a strong defence against Nemi Services Limited’s claim for Kshs 3,963,714.20 for garbage collection, maintaining that the claim is built on fabricated and fraudulent documentation. Although the applicant’s plaint alleged a contract award on April 21, 2019, for services starting April 1, 2019, such retrospective awarding indicates backdated fraud. The actual letter of award produced is dated April 8, 2019, and required written acceptance within seven days, which was never provided. Former Chief Officer Philip Gavuna confirmed no such tender was ever awarded, the purported agreement signed on April 23, 2019, expired after 90 days without an extension, the supporting delivery notes were in identical handwriting with only eight falling within the valid period, and the offices named as respondents are non-existent entities.
10. In conclusion, the County Attorney contends that the ex-parte judgment and execution proceedings remain open to legal challenge. He prays for a stay of execution to allow the lower court to determine the pending application to set aside the judgment or to enable an appeal, thereby averting financial loss and severe injustice to the County Government of Vihiga.
Decision
11. I have reviewed the application under the judicial review jurisdiction by the ex-parte Applicant together with documentary evidence in support of the alleged contract as entered with the Respondent on delivery of garbage collection services. In the same breadth there is a judgment by the trial Court entered on the 15th day of October 2025 in which she pronounced herself as follows: Whether the Plaintiff/exparte Applicant was entitled to the reliefs sought.
Whether the Plaintiff is entitled to the reliefs sought.5. The Plaintiff seeks judgment against the Defendant for payment of Kshs. 3,963,714.20/-,interest from date the amount became due and costs of the suit.6. I rely on the case of Hahn v Sign (1985) KLR 719 where it was held as follows;"...special damages which must not only be claimed specifically but proved strictly for they are not the direct natural but probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the act themselves..."1. In addition, it is trite law that he who alleges must prove as provided under Section 107 of the Evidence Act Cap 80 of Laws of Kenya which states that;"...on the existence of facts which he asserts must prove that those facts exist.(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person..."1. I find that the contract form, award letter, delivery notes, reconciliation of pending bills. schedule and demand letter all corroborate the existence of a service contract between the parties herein which is still unpaid by the Defendant.2. In the absence of a contractual obligation to pay interest, the statutory basis on which a court awards interest is to be found in Section 26 of the Civil Procedure Act which provides that;-
“(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rale as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit."1. The Plaintiff claims interest from the date when the amount became due. In this instance the breach of contract has been found to fall due fourteen days after the demand notice was received on 5t December 2024.However, the contract does not provide for interest accruing for non-payment. It is silent on that. 2. I am guided by the case of South Nyanza Sugar Company Limited v Oreko (Civil Appeal from the date of filing of the suit as the claim is for special damages. The interest is to be calculated at Court's rates. 3. Section 27 (1) of the Civil Procedure Act Cap. 21 holds that costs follow the events. In this case the Plaintiff has proved its case and is awarded costs.4. Consequently, judgement is entered in favor of the Plaintiff as against the Defendant as follows; 5. Judgement is entered against the Defendant in the sum of Kshs.3,963,714.20/=. 6. Costs and interest of the suit at court rates from the date of filing until payment in full.
12. This is the judgment which is the subject matter of this judicial review by the ex-parte Applicant. From the Respondent’s perspective, there is no evidence that the ex-parte Applicant complied with procedural protocols on enforcement of the judgment. The Respondents have gone further to state in their respective affidavits that no such contract was signed between the ex-parte Applicant and the County Government to warrant execution of the decree issued by the Court to settle the judgment debt.
13. The import of the affidavits by the Respondents is that the impugned judgment subject of this judicial review proceedings should be set aside as their defence seems not to have been considered. The guiding principles for setting aside judgments are now well settled as can be appreciated from the following legal scenarios:
Regular vs. Irregular Judgments:
• If a judgment is irregular (e.g., entered prematurely or without proper service of summons), the court must set it aside as a matter of right (ex debito justitiae).
• If a judgment is regular, the court exercises an unfettered, judicial discretion meant to avoid injustice or hardship.
Nature of Defence: The applicant must show a reasonable defense or triable issues that deserve a hearing on the merits rather than locking out a party prematurely.
Explanation for Delay: The court considers whether the delay in bringing the application is inordinate and whether any delay or inconvenience caused to the respondent can be compensated by an award of costs.
Conduct of Parties: Discretion will not be exercised to assist a person guilty of deliberate obstruction of justice or deliberate bad conduct.
Overriding Objective: Courts consistently favor the resolution of disputes on their merits rather than penalizing parties through final default outcomes.
14. Unfortunately, the record does not show that the Respondents have moved the Court in any way to set aside the regular or the irregular judgment as the case may be from their disposition in their affidavit. The principles guiding the exercise of that discretion are settled. In Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, the Court of Appeal held that the discretion to set aside is wide and is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a person who has deliberately sought to obstruct or delay the course of justice.
15. This Court has also not been served with an order of stay of execution of the judgment of this Court notwithstanding all those averments in the affidavits by the Respondents. The law in Kenya is now well settled insofar as both regular and irregular judgments is concerned. The ex-parte Applicant has already a judgment from the trial Court which showed that the Respondent filed defence and soon thereafter took flight from the Court’s jurisdiction. The same litigation policy under the Civil Procedure Act provides the pathway of litigation for a party who has been properly served but proceeds to take responsibility under Article 50 of the Constitution to participate in the proceedings within the scope of the procedural and substantive law. The ex-parte Applicant is before this Court placing reliance on the following instruments: the decree of the Court arising out of MCC/E028/2025 in which the Court ordained itself as follows:
CLAIM for Kenya Shillings THREE MILLION, NINE HUNDRED AND SIXTYTHREE THOUSAND SEVEN HUNDRED AND FORTEEN AND TWENTY CENTSONLY [3,963,714.20/= ONLY, COSTS AND INTERESTBY JUDGMENT of this Court dated the 15th day of OCTOBER, 2025
IT IS HEREBY ORDERED AND DECREED THAT COUNTY GOVERNMENT OF VIHIGA the defendant herein do pay to the Plaintiff
The sum of Kenya shillings 3,963,714.20/= only, from the 4th day of MARCH, 2025.
Principal Amount............3,963,714.20/=
Interest as Above............509,310.00/=
Decretal Amount......4.473,024.20 together with costs which has been assessed at Ksh 249,792.86/=.
16. This legal instrument provides the framework upon which exparte Applicant is seeking leave of this Court to move under judicial review jurisdiction for a writ of mandamus the answer by the Respondent is that the Judgment which is being relied upon by the exparte Applicant is irregular and asserted as such in the affidavits. This also happened to have taken place when the Court insisted that personal attendance of the Respondents be sought to explain why the decree remains unsettled. In my considered view, the impugned contract apparently seems to have been awarded in 2019 and that is not a short time for any measure. In the same record, when the ex-parte Applicant moved to Court both at the Lower Court and the High Court service had actually been effected without default. In the case of the High Court proceedings, there is evidence of an affidavit of service dated which reads as follows:
I, Muguro Irungu of P. O. Box 14636-00800 Westlands within the Republic of Kenya do hereby make oath and state as follows:
1. THAT I am an adult male of sound mind hence competent to swear this affidavit.
2. THAT I am an Advocate of the High Court practicing in the name and style of KMKLAW LLP and having conduct of this matter.
3. THAT on the 11th day of February, 2026 I served upon the County Attorney, Vihiga County with Certificate of Order dated 10th February, 2026.
4. THAT I served the documents via their known email address:vihigacountyattorney@gmail.com.(Annexed herewith and marked "MI-1" is a copy of the email print-out.)5. THAT what is deponed herein above is true to the best of my knowledge, information and belief whereof otherwise stated.
17. This inordinate delay by the Respondents not to make good the necessary application with regard to the valid judgment pronounced by the trial Court has not explained and the issue of the legal Counsel none availability to prosecute the justiciable issues before the Court cannot be a ground for this High Court to stay the judicial review proceedings which is based on the judgment of the trial Court.
18. The proper forum of conveniens on all those issues being litigated by the Respondents remains to be the trial Court. As a matter of emphasis, if indeed what the Respondents are alleging is true, they should have approached the originating Court of the judgment for a stay of execution of the decree. The originating court—meaning the exact same forum that granted or entered the judgment—is the proper forum to adjudicate an application to set aside both regular and irregular judgments. An applicant should not bypass this by filing a fresh suit or going straight to an appellate court unless specifically appealing a refused application to set aside.
19. Core distinctions and proper forum rules which govern the issues being pleaded in the affidavits by the Respondents is as stipulated herein below:
Judgment Type Definition Proper Forum & Remedy Key Legal Principle
Irregular Judgment Entered in violation of procedural rules (e.g., no service of summons, premature entry, or lack of notice). The Originating Court. Must be set aside ex debito justitiae (as a matter of right) upon application or by the court's own motion. The court does not evaluate the merits of the defense or delays; the breach of natural justice (audi alteram partem) voids the process.
Regular Judgment Entered in strict compliance with procedural rules, but the defendant failed to appear or defend. The Originating Court. The court exercises its unfettered judicial discretion to vary or set it aside. The applicant must satisfy the court that they have a prima facie triable defense on the merits and a reasonable explanation for the delay.
20. This litigation roadmap has not been pursued by the Respondents to warrant the judicial review Court to put brakes on the reliefs being sought by the exparte Applicants, for as reiterated by Lord Diplock in Isaacs v Robertson (1984) W.I.R. PC 128/(1985) AC 97 noted that in Courts of unlimited jurisdiction an order of judgment is either regular or irregular. If it is irregular, it must be set aside by the Court that made it upon a direct application. A person affected has a right (ex debito justiciae) to have that same court nullify its own irregular order. In the realm of domestic jurisdiction the Court of Appeal in James Kanyiita Nderity & Another v Marios Philotas Ghikas & Another (2016) KECA 470 (KLR) reaffirmed the strict jurisdictional handling of both categories. For an irregular default judgment (such as one entered where service was not properly effected), the originating court bears a strict judicial duty to clear its record and set it aside as a matter of right. Conversely, for a regular judgment, the party must move the same court under its statutory provisions to invoke discretionary relief.
21. This is not the right forum of adjudication as provided for under Article 50(1) of the Constitution. Hence, the Respondents’ case cannot even be saved by provisions of Article 159 of the Constitution which lays out the guiding principles the strict jurisdictional handling of both categories. For an irregular default judgment (such as one entered where service was not properly effected), the originating court bears a strict judicial duty to clear its record and set it aside as a matter of right. Conversely, for a regular judgment, the party must move the same court under its statutory provisions to invoke discretionary relief.
“This latter edict, that justice is to be administered without undue regard to procedural technicalities, has sparked significant debate and controversy given that there have been numerous instances where litigants have seemingly thrown procedural rules and con- straints to the wind and nonetheless expected favourable out- comes on the substance of the dispute. This issue was addressed in Raila Odinga & 5 Others v IEBC & Others (2013) eKLR in which the Court had this to say on the effect of Article 159 of the Constitution:
“Our attention has repeatedly been drawn to the provisions of Article 159(2) (d) of the Constitution which obliges a court of law to admin- ister justice without undue regard to procedural technicalities. The op- erative words are the ones we have rendered in bold. The Article simply means that a Court of law should not pay undue attention to procedur- al requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the Courts of law …”
22. The affidavits assertion on the invalidity of the judgment pronounced by the trial Court remains what they are until there is a review by the same Court as provided for under the legal and statutory framework in our legal system. That pillar on non-existent of a contract which formed the basis of the impugned judgment and subsequent decree extracted by the ex-parte Applicant as agitated by the Respondents is as of now submissions and evidence being adduced in the wrong forum and therefore has no legal effect. It is a litigation anchored on sinking sand.
23. The second limb is to consider the merits of the judicial review jurisdiction which essentially can be stated to provide the following pathway in our legal system. Thus:
Judicial Review is the authority vested in the Courts in appropriate proceedings before it, to declare a decision or action by an authoritative body either contrary to, or in accordance with, the Constitution or other governing law with the effect of rendering the decision invalid or vindicating its validity. Put simply, it gives effect to the Constitutional principle of checks and balances. Judicial Review is primarily concerned with the decision-making process and as such, when Courts conduct Judicial Review proceedings, they are in essence ensuring that the decisions made by the relevant bodies in authority are lawful. Consequently, should the Courts find that a decision made by a body is unlawful (be it for reasons such as disregarding procedural technicalities), then the Courts can set aside that decision. The role of the Court is therefore supervisory, and the Court is refrained from delving into a merit review or adopting an appellate approach – which is ordinarily not the function of Judicial Review.
24. At the outset, it may be noted that the Respondents have chosen to raise some new grounds before this Court despite the judicial review application involving questions of execution and enforcement of the decree issued by a competent Court. The County Government is recognized under the Constitution and as an entity there are both procedural and substantive guidelines on how to enforce a decree in which it has been found culpable under our established administration of justice protocols. It is thus well settled that the Constitutional Courts in Kenya while exercising their powers of judicial review do not assume the role of an appellate jurisdiction. Put differently, judicial review is not an analogous to venturing into the merits of a case like an appellate Court.
25. The prerogative writ being sought by the ex-parte Applicant is one of mandamus whose key principles include:
• Legal Right and Duty: A writ of mandamus requires a clear legal right in the petitioner and a corresponding public or statutory duty on the respondent.
• No Alternative Remedy: It is issued only when the applicant has no other equally efficient, convenient, and adequate remedy.
• Discretionary Control: Courts use mandamus to correct failures to exercise power or instances of improper, unlawful, or arbitrary administrative action.
• Separation of Powers: Courts cannot use mandamus to direct the legislature or executive to enact laws or usurp core policy-making functions
26. A strong and impartial judiciary is a sine qua non of any government. Judiciary plays a key role in deciding the stipulates between the citizens and between a citizen and state. In today’s age, the administration plays an essential role in every individual’s life. Administrative laws are also expanding to meet the demands of new conditions. Judicial review is an integral component of the rule of law. The grounds for judicial review are implicit in the Fair Administrative Action Act of Kenya and the various progressive jurisprudence developed over time by the Courts in Kenya. They include the following:
a) Jurisdictional error: Where the tribunal or authority holds no power or jurisdiction at all to pass an order. The court may review this administrative action on the ground that the authority exercised jurisdiction which it was not supposed to.
b) Irrationality: The definition of the irrationality ground of judicial review recognizes the constitutional principle of the separation of powers, in allowing for judicial control of the executive only very rarely.
c) Procedural impropriety: It is a failure to comply with the laid down procedures. Procedural Impropriety is to cover two areas which are failure to observe rules given in statute and to observe the basic common-law rule of justice.
d) Proportionality: Proportionality means that the concerned administrative action should not be more forceful than it requires to be. The principle of proportionality implies that the court has to necessarily go into the advantages and disadvantages of the action called into question. Unless the so-called administrative action is advantageous and in the public interest, such an action cannot be upheld. This doctrine tries to balance means with ends.
e) Legitimate expectation: This doctrine serves as a ground of judicial review to protect the interest when a public authority rescinds from a representation made to a person. A legitimate expectation arises in the mind of the complainant who has been led to understand expressly or impliedly that certain procedures will be followed in reaching a decision. The expectation has a reasonable basis. This doctrine has evolved to give relief to the persons who have been wronged because of the violation of their legitimate expectation and have not been able to justify their claims on the basis of law.
27. In the application before Court the ex-parte Applicant seeks leave of this Court for issuance of a writ of mandamus which basically means ‘to command the public authority’ to perform its duty. It is a command gi
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