Akura v Chief Executive Officer, National Irrigation Authority & another (Environment and Land Judicial Review Case E006 of 2026) [2026] KEELC 3910 (KLR)
The bottom line
#A Kenyan court struck out a man's attempt to force a state agency to pay his legal costs, because he skipped mandatory paperwork steps before suing.
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 was 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 were available in a judicial review application
- 4.Who should bear the costs of the application
Key legal issues
#Whether counsel for the Respondents was properly on record
The firm of G & A Advocates LLP was not properly on record as there was no Notice of Appointment of Advocates; its filings were struck out
Order 9 Rule 1 of the Civil Procedure Rules confines appearance to a party in person, a recognized agent, or a duly appointed advocate. The court found no Notice of Appointment or Appearance on the record for G & A Advocates LLP, so right of audience was not established and the documents filed by that firm had to be expunged.
Whether constitutional declarations and compensatory damages could issue within a judicial review application
No - such reliefs transcended judicial review and required a properly instituted constitutional petition pleaded with Anarita Karimi precision
Judicial review interrogates legality, procedural propriety and rationality of administrative action, while constitutional litigation determines alleged violations of rights and remedies flowing therefrom. The principles of constitutional avoidance and the requirement of specificity (Anarita Karimi Njeru, Mumo Matemu) meant the delay-in-payment claim failed particularization and belonged in a petition, not a judicial review motion.
Whether the Applicant complied with Section 21 of the Government Proceedings Act to justify mandamus
No - there was no proof of service of the certificate of order against the Government on the Attorney General, so the application was premature
Mandamus against Government requires satisfaction of the elaborate Section 21 procedure: certificate of costs, certificate of order against the Government, and service on the Attorney General, with demand and refusal. The Applicant's emails (SOA 7-10) contained no delivery receipts and no affidavit of service; the Hawkind authority was distinguished because the Attorney General never acknowledged the email address used. Non-compliance rendered the application premature.
Costs
Each party to bear their own costs, despite the application failing, because the Respondents' counsel was not properly on record
Section 27 of the Civil Procedure Act provides that costs follow the event, and the event was the application's failure. However, since the court found the Respondents' counsel was not properly appointed and struck out the responses, the application stood as unopposed, justifying an order that each party bear their own costs.
Legal principles established
#- An advocate must demonstrate formal appointment through filing of the requisite documentation before having right of audience for a party
- Compliance with Section 21 of the Government Proceedings Act, including service of the certificate of order against the Government on the Attorney General, is a condition precedent to an order of mandamus compelling payment of a decree against Government
- Service by email is proved by a delivery receipt exhibited through an affidavit of service; a printed email without a delivery receipt is insufficient
- Constitutional violation claims must be pleaded with specificity and precision, and a litigant must first exhaust prescribed statutory enforcement procedures before alleging constitutional violations
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 to be treated as though never filed
- 2.The prayers for constitutional reliefs (declarations and compensatory damages) are found untenable
- 3.The entire Originating Motion is found incompetent, premature and misconceived and is struck out
- 4.Each party to 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 the Fair Administrative Actions Act and Section 21(3) of the Government Proceedings Act (prayers b and c)
Constitutional declarations require a properly instituted constitutional petition with specificity and precision; judicial review interrogates legality, propriety and rationality of administrative action, not substantive constitutional violations
Judicial review order of mandamus compelling payment of Kshs. 356,675/= plus interest at 14% per annum (prayers d and e)
No proof of service of the Certificate of Order against the Government and related documents upon the Attorney General; no delivery receipt or affidavit of service exhibited, hence statutory conditions precedent under Section 21 of the Government Proceedings Act unfulfilled
Compensatory damages for violation of Article 47(1) of the Constitution (prayer f)
Constitutional remedies cannot be granted in judicial review proceedings; delay in paying taxed costs does not automatically translate into a constitutional violation
Costs
Each party to bear their own costs in the application, because the Respondents' counsel was not properly on record so the application was deemed not properly opposed
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.
In the circumstances, I find that the applicant has not complied with the requirements of Section 21 of the Government Proceedings Act. His application is for an order of mandamus against the Respondents is thereby is premature. 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.
Thus, the application having been deemed as not having been properly opposed, then each party shall bear their own costs in the application.
Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.
Service shall be deemed to have been efiected when the Sender receives a delivery receipt
it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.
Issues in the judgment
#Gender inconsistencies: the Applicant is described as both 'She'/'her' and 'he'/'his' throughout the judgment (e.g. 'She brought it under Certificate of Urgency' versus 'mandamus be issued in favour of the applicant Solomon Owiti Akura')
Dates are inconsistent: the certificate of order against the Government is dated 16th April 2025 in the pleadings but appears as 'dated 16th April 2024' in the list of annexures; an email is described as 'dated 30th May 2026' although it purportedly attached the May 2025 letter
The Tribunal judgment is variously described as dated 14th June 2024 and 'dated 8th December 2025' in the list of annexures
Prayer (d) names the applicant as 'Solomon Owiti Akura' but paragraph 1 refers to the Applicant as 'She'; also the case number of this Originating Motion is not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Akura v Chief Executive Officer, National Irrigation Authority & another (Environment and Land Judicial Review Case E006 of 2026) [2026] KEELC 3910 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3910/eng@2026-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.