Republic v County Government of Mombasa CECM, Finance & Economic Affairs & 5 others; Miller and Company Advocates (Ex parte Applicant) (Judicial Review E012 of 2025) [2026] KEELC 4676 (KLR)
The bottom line
#The Environment and Land Court in Mombasa ordered Mombasa County to pay a court-awarded debt within 14 days, rejecting budget and service excuses.
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 1st, 3rd, 4th, 5th and 6th Respondents were wrongly enjoined in the proceedings
- 2.Whether an order of mandamus could issue where the Certificate of Order against the Government was not personally served on the 2nd Respondent as Accounting Officer
- 3.Whether the application was premature because the decretal sum had not been factored into the current financial year's budget
Key legal issues
#Effect of non-personal service of the Certificate of Order on the Accounting Officer
Service on the County Attorney constituted service on the County Government; the non-service argument was a technicality designed to evade a lawful decree.
The court found the judgment, decree, certificate of taxation and Certificate of Order were served on the Office of the County Attorney, established under the Office of the County Attorney Act as the County Government's principal legal adviser and court representative. The County had participated in proceedings since 2022, so knowledge was established and Section 21's purpose of notification was fulfilled.
Whether the absence of budgetary allocation excused non-payment
It did not; the statutory duty to pay under Section 21(3) is not conditioned on budgetary allocation and the Government must make contingency provisions for its liabilities.
Relying on Manoah Egunza, the court held that the Government enjoys no special privilege as to liability, only as to the mode of execution, and that payment under Section 21(3) is not conditioned on parliamentary approval. The failure to budget was an internal administrative arrangement that could not defeat the decree.
Whether other Respondents were wrongly enjoined
Although only the 2nd Respondent is the Accounting Officer, the misjoinder could not defeat the suit under Order 1 Rule 9 and caused no prejudice.
Section 103(3) of the Public Finance Act establishes the County Treasury headed by the CECM for Finance as Accounting Officer, making joinder of the Chief Officer, County Secretary and County Attorney unnecessary. However, Order 1 Rule 9 bars a suit being defeated by misjoinder, and the joinder served to give notice to all departments facilitating compliance without prejudice.
Legal principles established
#- Service of the Certificate of Order against the Government on the County Attorney, the County Government's statutory legal office, constitutes service upon the County Government itself and satisfies Section 21 of the Government Proceedings Act.
- Personal service on the Accounting Officer is not a precondition to mandamus where the Government's knowledge of the decree is already established.
- Failure to budget for a decretal sum cannot defeat a judgment creditor's right to enjoy the fruits of judgment.
- Misjoinder of parties does not defeat a suit.
Court orders
#- 1.An order of mandamus compelling the Respondents jointly and severally to pay within fourteen (14) days to Miller and Company Advocates the sum owing on account of the judgment entered on 30th July 2025 and the Certificate of Order dated 1st September 2025 in ELC Miscellaneous Application No. E040 of 2024, together with taxed costs and accruing interest
- 2.Costs of the application to the Applicant
- 3.These orders shall apply in ELCJR No. E006 of 2025 and E009 of 2025
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review for an order of mandamus against county government officers; enforcement under Section 21 of the Government Proceedings Act
- Consolidated with
- ELCJR No. E006 of 2025, ELCJR No. E009 of 2025
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 hereby allow the Notice of Motion dated 4th November 2025 as prayed with costs.
These orders shall apply in ELCJR No. E006 of 2025 and E009 of 2025
service of the Certificate of Order against the County Government on the County Attorney on 2nd September 2025 constituted a demand for payment
an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.
Unless something is done he will forever be left babysitting his barren decree.
Issues in the judgment
#The decretal sum is stated inconsistently within the judgment (Kshs 406,212.60 / 406,212,60 / 406,212.06)
The judgment is described as a 'RULING' dated 23rd July 2026 although it determines the Notice of Motion filed November 2025; the year 2026 may be a typographical error for 2025
Inconsistent spellings within the judgment ('madamus', 'ofier', 'sufier', 'afiairs') appear to be scanning errors
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Government of Mombasa CECM, Finance & Economic Affairs & 5 others; Miller and Company Advocates (Ex parte Applicant) (Judicial Review E012 of 2025) [2026] KEELC 4676 (KLR)", Case Analysis (2026). ELC Judicial Review (Chamber Summons dated 1st October 2025; Notice of Motion dated 4th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4676/eng@2026-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.