Akura v Chief Executive Officer, National Irrigation Authority & another (Environment and Land Judicial Review Case E005 of 2026) [2026] KEELC 3913 (KLR)
The bottom line
#A Kenyan court struck out a bid to force a state agency to pay awarded costs, because the claimant skipped mandatory steps for enforcing judgments against the Government.
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.Who should bear the costs of the application
Key legal issues
#Whether the Respondents' counsel was properly on record
G & A Advocates LLP was not properly on record as no Notice of Appointment of Advocates was filed; their Grounds of Opposition and submissions were struck out
Order 9 Rule 1 of the Civil Procedure Rules confines the right of audience to the party in person, a recognized agent, or an advocate duly appointed. Appointment must be formalized by filing the requisite documentation. Since no Notice of Appointment was on record, the firm had no authority, and their filings were expunged, leaving the Applicant's allegations uncontroverted.
Whether the declaratory and compensatory reliefs were available in a judicial review application
They were not; judicial review is conceptually distinct from a constitutional petition, and the constitutional prayers were untenable
Judicial review interrogates legality, procedural propriety and rationality of administrative action, whereas constitutional litigation determines alleged violations of rights and grants remedies flowing therefrom. Declarations and compensatory damages for Article 47 violations required a properly instituted constitutional petition with violations pleaded with the precision required by Anarita Karimi Njeru and Mumo Matemu, and the constitutional avoidance principle applied.
Whether the Applicant complied with Section 21 of the Government Proceedings Act as a condition precedent to mandamus
No; the Applicant failed to prove service of the Certificate of Order against the Government on the Attorney General, so mandamus could not issue
Under Section 21(1) and (2), a certificate of order against the Government must be served on the Attorney General, which crystallizes the statutory duty under Section 21(3). The Applicant's emails showed no delivery receipt, and no Affidavit of Service was filed as required by Order 5 Rules 22B(2) and (4). The Hawkind Corporation decision was distinguished because there the email address was undisputed and a delivery receipt existed. The duty to pay had not crystallized.
Costs of the application
Although costs normally follow the event, each party was to bear their own costs because the Respondents were never properly on record
Section 27 of the Civil Procedure Act provides that costs follow the event, and the application failed. However, since the court found the Respondents had not properly appointed counsel and the application was deemed improperly opposed, the usual rule was displaced and each party bore its own costs.
Legal principles established
#- A litigant must strictly comply with the statutory procedure for enforcement of decrees against the Government before alleging constitutional violations arising from non-payment
- Service by email is only effective where a delivery receipt is obtained and exhibited, per Order 5 Rule 22B of the Civil Procedure Rules
- An advocate who has not filed a Notice of Appointment is not properly on record, and filings made by such counsel are a nullity
Court orders
#- 1.The documents purportedly filed on behalf of the Respondents by the firm of G & A Advocates LLP are struck out or expunged and treated as though never filed
- 2.The Originating Motion is struck out as incompetent, premature and misconceived
- 3.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 of the Fair Administrative Actions Act
Constitutional declarations cannot be granted in a judicial review application; the claim also failed the Anarita Karimi precision requirement
Order of mandamus compelling payment of Kshs. 356,675/= plus interest
No proof of service of the Certificate of Order against the Government on the Attorney General; Section 21 of the Government Proceedings Act not complied with
Compensatory damages for violation of Article 47(1)
Not available in judicial review proceedings; delay in paying a decree does not automatically amount to 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.
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 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
It means that it is not enough to print out am email sent or purported to have been sent out as the applicant herein did: there must proof of a delivery receipt of the email to accompany it, and demonstrated by an Affidavit of Service by an officer of the Court, attaching the delivery receipt.
If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, 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
#The judgment inconsistently refers to the Applicant's gender, switching between 'she/her' and 'he/him'
Conflicting dates for the certificate of order against the Government - elsewhere dated 16th April 2025, the annexture list records 16th April 2024
Conflicting dates for the Tribunal judgment - elsewhere dated 14th June 2024, the annexture list records a judgment dated 8th December 2025
Inconsistent dates for the Deputy Registrar's ruling on taxation - elsewhere 20th March 2025 and 8th March 2025, the annexture list records 20th March 2025 while paragraph 24 of the Respondents' submissions refers to a Ruling on Taxation on 20th March 2025 and paragraph 5 records the Tribunal ruling as 8th March 2025
Inconsistent email date - annexture IOA 9 described as an email dated 30th May 2026 though the forwarding letter it attaches is dated 30th May 2025
The judgment refers to the Applicant as having filed the motion against 'the appellant' in the prayers, and inconsistently cites the Tribunal dispute as LAT dispute no. E007 of 2024 and TRLAP No. E007 of 2024
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 E005 of 2026) [2026] KEELC 3913 (KLR)", Case Analysis (2026). ELC Judicial Review No. E005 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3913/eng@2026-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.