Kinyanjui & 4 others v County Secretary, The County Government of Nairobi & another (Judicial Review Miscellaneous Application E001 of 2024) [2025] KEELC 5272 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the exparte Applicants' said Application meets the factors that determine grant of an Order of Mandamus
- 2.If there is a public legal duty to act on the part of the Respondents
- 3.Whether the exparte Applicants' are entitled to payments of damages by the Respondents
- 4.If the correct procedure has been followed before lodging these proceedings
- 5.Whether the Respondents have been given or served with requisite statutory notices before institution of the proceedings herein
- 6.If there is any other remedy or better remedy available to the exparte Applicants
- 7.Whether there is an equitable bar to the relief sought and on a balance of convenience should an order of mandamus lie
Key legal issues
#Whether the Applicants complied with Section 21 of the Government Proceedings Act
Yes; service of the Certificate of Order against the Government was proved by an uncontroverted Affidavit of Service dated 13/06/2024
The Respondents claimed the Certificate of Order was never served, rendering the application premature. The Court found an uncontroverted Affidavit of Service showing the Respondents stamped their copies, and a Further Affidavit sworn on 9/09/2024 controverted the Replying Affidavit's averments. The Respondents were therefore 'less than candid' and service was satisfied.
Whether mandamus should issue against the Respondents to settle the decretal sum
Yes; the decree is due and payable, there is default, and mandamus is the only lawful enforcement route against government
The Applicants obtained a decree nearly five years earlier which remains unsatisfied. Execution against government is barred except through the Section 21 procedure, which was complied with. The Respondents gave no satisfactory reason for non-payment; the plea that the County Assembly made no budget provision and that budget-cycle closure requires legislative approval did not defeat the statutory duty of the accounting officers to pay certified sums.
Whether Nairobi City County had to be joined as it was not the party sued in the underlying suit
No; the Respondents are aware the assets and liabilities of the defunct city council were taken over by Nairobi City County
The Respondents argued the wrong entity was sued below. The Court held this plea void because the functions, assets and liabilities of the defunct County Council of the City of Nairobi were taken over by the Nairobi City County, so the Respondents stand liable for the decree.
Weight to attach to the Replying Affidavit sworn by Boniface Waweru
Its probative value was compromised because no authority from Nairobi City County authorising him to swear it was attached
The deponent claimed authority from the Respondents but none was attached, and the Court perused the filed documents and found none. Consequently the evidence in the Replying Affidavit, including the claim of non-service, carried little weight.
Legal principles established
#- Before mandamus issues to enforce a decree against government, the applicant must comply with the procedure in Section 21 of the Government Proceedings Act, including service of the Certificate of Order against the Government.
- Mandamus lies to compel performance of a public duty imposed by statute where the duty-bearer has failed to perform it to the detriment of a party with a legal right to its performance.
- Mandamus is the only lawful mode of enforcing a decree against the Government, and access to justice requires that judgment-holders enjoy the fruits of their judgment.
Court orders
#- 1.An order of mandamus granted compelling the Respondents to settle the decretal amount in respect of High Court ELC No. 372 of 2017 Thika, standing at Kenya Shillings 49,935,694.25 as at 21st June 2023, plus interest at court rate from the date of issue of the Certificate of Order to full settlement
- 2.Upon taxation of the Bill of Costs for this suit, the Respondents to settle both the decretal sum in ELC No. 372 of 2017 Thika and the costs of these judicial review proceedings within 30 days of service of the order and the taxed Bill of Costs
- 3.Costs of this suit awarded to the Ex parte Applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 53 of the Civil Procedure Rules (judicial review); Section 21 of the Government Proceedings Act; Article 48 of the Constitution
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That an order of mandamus do and is hereby granted for the Respondents to settle the decretal amount of money in respect of High Court ELC No. 372 of 2017 Thika which stood at Kenya Shillings forty nine million, nine hundred and thirty five thousand, six hundred and ninety four twenty five cents (read Kenya Shillings 49,935,694.25) as at the date of issue of a Certificate of Order issued on 21st June 2023 and interest of the said money at the Court rate from the date of issue of the said Certificate of Order to the date of full settlement.
That upon taxation of the Bill of Cost for this suit the Respondents do settle both the decretal sum in High Court ELC No. 372 of 2017 Thika and the cost of this Judicial Review proceedings within 30 days of service of the order in (i) above and the Bill of Cost for this suit.
Access to justice cannot be said to have been ensured when persons in whose favour Judgements have been Decreed by Courts of competent jurisdiction cannot enjoy the fruits of their Judgement due to roadblocks placed on their paths by actions or inactions of public oficers.
The Decree herein is due and payable and there is indeed default. The Applicant cannot within the law execute the Decree against the Respondents other than through the procedure in Section 21 of the Government Proceedings Act.
Issues in the judgment
#The judgment states the decree was obtained in a suit for nuisance against a contractor building Ndakaini dam, with damages of Kshs 2,100,000 per applicant, yet refers to a case 'filed... 40 years' ago and an award of interest 'for a period of 32 years', which sits uneasily with a 2017 Thika suit number; the chronology is internally unclear.
The decretal sum figure is inconsistently rendered - Kshs 49,935,694.25 in the Motion and orders but Kshs 49,935,694.52 in paragraph 6.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinyanjui & 4 others v County Secretary, The County Government of Nairobi & another (Judicial Review Miscellaneous Application E001 of 2024) [2025] KEELC 5272 (KLR)", Case Analysis (2025). Judicial Review (Exparte) Application; Notice of Motion dated 6th May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5272/eng@2025-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.