Butali & 36 others v District Land Registrar, Thika District & 4 others (Judicial Review Application 4 of 2020) [2025] KEELC 8395 (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 Applicant is entitled to an order of mandamus to compel the Respondents to pay the decretal sum under Section 21 of the Government Proceedings Act
Key legal issues
#Entitlement to mandamus to enforce a decree against the Government under Section 21 of the Government Proceedings Act
The Applicants fully complied with the Section 21 procedure (decree, certificate of order against the Government, demand and service), no appeal, stay or review exists, and six budget cycles have passed since the judgment; mandamus therefore issues.
Section 25 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules bar execution against Government property, leaving mandamus as the sole remedy. The court found the Applicants had secured a valid Decree, obtained a Certificate of Order against the Government and served it on the Respondents. The Respondents raised only budgetary constraints and an alleged error in the number of Petitioners (34 not 37), neither of which excuses payment. The budget argument was rejected as an attempt to defeat the judgment, and the error argument was held improper via submissions and incapable of shielding non-compliance with a lawful decree.
Whether the Respondents' budgetary argument and the alleged decree error defeat the application
Neither argument avails. Payment under Section 21(3) is not conditioned on budgetary allocation, and the error in the decree cannot be used as a shield to avoid compliance with a lawful decree.
The court adopted the reasoning in Nassir Mwandihi and the Provincial Administration case that the Section 21 procedure is meant to give the Government notice, not to relieve it of its statutory obligation. Six budget cycles had elapsed since the judgment of 8/11/2019 without payment, showing the accounting officer's awareness. As to the alleged error (34 vs 37 petitioners), the court noted the Respondents should simply pay the figure they contend is correct rather than obstruct; in any event the mandamus issued for the full decreed sum of Kesh 3,700,000.
Legal principles established
#- No execution or attachment may issue against the Government; the sole recourse of a decree holder against the Government is an order of mandamus against the accounting officer.
- Where a judgment creditor has complied with Section 21 of the Government Proceedings Act and the Government fails to pay, mandamus lies to compel performance of the statutory duty.
- A decree against the Government cannot be conditioned on budgetary allocation; Section 21(3) imposes a statutory duty on the accounting officer to pay once the certificate of order against the Government is served.
- An alleged error in a decree cannot be raised through submissions to defeat compliance; it must be raised by formal application.
Court orders
#- 1.An order of Mandamus to compel the Respondents to pay the Applicants Kenya Shillings Three Million Seven Hundred Thousand (Kesh 3,700,000) as awarded in Thika ELC No. 90 of 2018 as contained in the Decree dated 1st December, 2019
- 2.Costs of the application awarded to the Petitioners/Applicants to be paid by the 2nd Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act, Cap 26 and Order 53 Rules 1, 3 and 4 of the Civil Procedure Rules, 2010, pursuant to leave granted on 28th October, 2021
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.
Accordingly, I find the Notice of Motion dated 8/11/2020 to be merited and is hereby allowed
pursuant to leave granted on 28th October, 2021, this Court has issued an order of Mandamus to compel the Respondents to pay the Applicants a sum of Kenya Shillings Three Million Seven Hundred Thousand (Kesh 3,700,000)
The Costs of this application are awarded to the Petitioners/ Applicants to be paid by the 2nd Respondent.
The invocation of the error in the Decree cannot be used as a shield to avoid compliance with a lawful Decree.
This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues.
Issues in the judgment
#The judgment inconsistently refers to the case number of the underlying suit and the date of the Notice of Motion: the motion is described as filed pursuant to a judgment in 'Thika ELC No. 90 of 2017' but the mandamus order refers to the award 'in Thika ELC No. 90 of 2018'; similarly the motion is dated 8/11/2020 in the disposition although leave was granted on 28/10/2021.
The court grants mandamus for the full sum of Kesh 3,700,000 while acknowledging the Respondents' contention that the correct figure for 34 petitioners is Kesh 3,400,000, without resolving the discrepancy.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Butali & 36 others v District Land Registrar, Thika District & 4 others (Judicial Review Application 4 of 2020) [2025] KEELC 8395 (KLR)", Case Analysis (2025). Thika ELC No. 90 of 2017 (Judicial Review Motion pursuant to leave granted 28/10/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8395/eng@2025-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.