Nyaoke v Chief Executive Officer, National Irrigation Authority & another (Environment and Land Judicial Review Case E002 of 2026) [2026] KEELC 3889 (KLR)
The bottom line
#A Kenyan court struck out a claim for unpaid tribunal costs because the claimant skipped the required step of proving she served the Attorney General.
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 firm of G & A Advocates LLP is properly on record for the Respondents
- 2.Whether the Applicant satisfied the conditions for the grant of the orders sought, including compliance with Section 21 of the Government Proceedings Act
- 3.Whether the constitutional declarations and compensatory damages sought are available in judicial review proceedings
- 4.Who should bear the costs of the application
Key legal issues
#Whether G & A Advocates LLP was properly on record for the Respondents
The firm was not properly on record as no Notice of Appointment or Appearance had been filed; its filings were struck out, leaving the Applicant's allegations uncontroverted
Order 9 Rule 1 of the Civil Procedure Rules confines the right of audience to a party in person, a recognized agent, or an advocate duly appointed. The appointment must be formalized by filing the requisite documentation. Since no Notice of Appointment was on record, the Grounds of Opposition and Submissions filed by the firm were expunged and treated as never filed.
Whether constitutional declarations and compensatory damages could be granted within a judicial review application
No. Such reliefs exceed the scope of judicial review and required a constitutional petition pleaded with precision; the claim also failed the Anarita Karimi specificity requirement and the constitutional avoidance principle
Judicial review interrogates legality, procedural propriety and rationality of administrative action, whereas constitutional litigation determines alleged rights violations and remedies. Specificity, clarity and precision apply equally outside petitions. The court applied constitutional avoidance and Gabriel Mutava to decline the constitutional inquiry.
Whether the Applicant complied with Section 21 of the Government Proceedings Act as a condition precedent to mandamus
No. Although she claimed service on the Attorney General, no delivery report or affidavit of service proved the service of the Certificate of Order against the Government, so the statutory duty to pay never crystallized and mandamus was premature
Section 21(1) and (2) require issuance and service of a certificate of order against the Government upon the Attorney General, which triggers the accounting officer's statutory duty under Section 21(3). Emails annexed did not attach proof of delivery to the Attorney General, a critical office. Non-compliance rendered the application premature and, with the untenable constitutional prayers, misconceived.
Who bears the costs
Each party to bear their own costs, since although the application failed, the Respondents were not properly represented so the application was deemed unopposed
Section 27 of the Civil Procedure Act provides that costs follow the event, and the event was the application's failure. However, the Respondents' counsel was not properly appointed, so the application was deemed not properly opposed; the court balanced these factors by ordering each party to bear its own costs.
Legal principles established
#- An advocate cannot appear for a party without a filed Notice of Appointment or Appearance; documents filed by an unappointed firm may be expunged
- A litigant must strictly comply with the statutory procedure for enforcing decrees against the Government before alleging constitutional violations from non-payment
- Mandamus to compel Government to satisfy a decree requires proof of compliance with Section 21 of the Government Proceedings Act, including service of the certificate of order against the Government on the Attorney General and a demand
- Proof of service of documents by electronic mail requires a delivery report and a delivery receipt filed with an affidavit of service
Court orders
#- 1.The Grounds of Opposition and Submissions filed by G & A Advocates LLP on behalf of the Respondents are struck out or expunged and treated as though never filed
- 2.The entire Originating Motion is found to be incompetent, premature and misconceived and is struck out
- 3.Each party shall bear their own costs in the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 23(2) and (3), 47(1) and (2), 50(1) and 159(2)(d) of the Constitution; Section 13(5) of the Environment and Land Court Act; Section 7 of the Fair Administrative Actions Act; Section 21(3) of the Government Proceedings Act; rule 11 of the Fair Administrative Action Rules 2024
Relief refused
#Declarations of violation of Articles 10, 47(1), 47(2) and 232 of the Constitution and of the Fair Administrative Actions Act and Section 21(3) of the Government Proceedings Act
Declarations of constitutional violation and compensatory damages transcend judicial review and required a properly instituted constitutional petition with precision; the claim also failed the Anarita Karimi specificity test
Judicial review order of mandamus compelling payment of KShs. 356,675/= plus interest at 14% per annum
No evidence of service of the Certificate of Order against the Government upon the Attorney General; no delivery report or affidavit of service was filed, so the conditions of Section 21 of the Government Proceedings Act were not satisfied
Compensatory damages for violation of Article 47(1)
Constitutional remedies are not available in a judicial review application; a delay in settling a decree does not automatically translate into a constitutional violation
Costs
Each party shall bear their own costs in the application
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.
Thus, having also found that the prayers for the constitutional reliefs sought are untenable, then the whole Originating Motion is incompetent, premature and misconceived and is hereby struck out.
the application having been deemed as not having been properly opposed, then each party shall bear their own costs in the application.
where Parliament has prescribed a specific statutory procedure for enforcement of decrees against the Government, under the Government Proceedings Act, a litigant must first demonstrate strict compliance with that procedure before alleging violation of constitutional rights arising from non-payment.
Judicial review primarily interrogates the legality, procedural propriety and rationality of administrative action, whereas constitutional litigation concerns the determination of alleged violations of constitutional rights and the grant of remedies flowing therefrom.
An advocate cannot simply appear in Court on behalf of a party without demonstrating that he or she has been duly appointed.
the documents they purportedly filed on behalf of the respondents are hereby struck out or expunged: they are be treated as though they were never filed, in the first place.
Issues in the judgment
#The judgment inconsistently refers to the Tribunal as 'Land Adjudication Tribunal', 'Land Acquisition Tribunal' and 'LAT', and gives conflicting dates for the certificate of order against the Government (16th April 2024 in the annexure list versus 16th April 2025 elsewhere)
The judgment shifts between feminine and masculine pronouns for the Applicant ('She sought orders' versus 'the applicant who argued that the delay in payment of the taxed costs went against his rights')
Email annexure PAN 9 is dated 30th May 2026 while the letter it forwards is dated 30th May 2025, an apparent date discrepancy in the record of service
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaoke v Chief Executive Officer, National Irrigation Authority & another (Environment and Land Judicial Review Case E002 of 2026) [2026] KEELC 3889 (KLR)", Case Analysis (2026). ELC JR NO. 002 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3889/eng@2026-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.