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ELCPartially AllowedELC Judicial Review No. E011 of 2025

Republic v County Government of Mombasa & 5 others, Ex parte Miller and Company Advocates

Environment and Land Court of Kenya
24 September 2026
YAY. M. Angima
2,017 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The ex parte applicant, Miller and Company Advocates, obtained leave on 02.10.2025 and then moved by notice of motion dated 04.11.2025 for an order of mandamus compelling six Mombasa County respondents to pay Kshs 2,736,172.86, a taxed fee note adopted as judgment on 30.07.2025 in ELC Misc Application E047 of 2024, with costs and interest. The applicant had been instructed by the county in 2022, taxed its bill on 11.12.2024, obtained a certificate of costs dated 18.12.2024, judgment, a decree extracted on 26.08.2025 and a certificate of order against the government issued on 01.09.2025, none of which was satisfied. The respondents, in a replying affidavit by Murtaza Tajbhai, opposed the application as premature and defective, contending that only the 2nd respondent had the statutory mandate to authorise expenditure, that service had not been effected on the CECM Finance, and that payment outside the budget cycle approved by the County Assembly was prohibited. The court framed three issues: service, mandamus, and costs. It held that service on the County Attorney sufficed for all respondents, applied the mandamus test from Republic v Principal Secretary, Ministry of Internal Security Ex-Parte Schon Noorani, found a clear debt, prior demand, refusal and no other adequate remedy, and issued mandamus against the 2nd respondent only, dismissing the claim against the others. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents were properly served.
  2. 2.Whether the court should grant an order of mandamus against the respondents.
  3. 3.Who shall bear the costs of the application.

Key legal issues

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01

Whether the respondents were properly served

Holding

Service on the County Attorney was sufficient service on all respondents.

Reasoning

The County Attorney, established under the Mombasa County Office of the County Attorney Act 2017, is the principal legal adviser responsible for advising all county departments and agencies. The applicant emailed the demand and court order to that office and served the leave and mandamus applications on it, demonstrating service of the demand for settlement of the decree.

p. 7
02

Whether mandamus should issue against the respondents

Holding

Mandamus issued against the 2nd respondent only; the claim against the rest was dismissed.

Reasoning

Applying the Schon Noorani test, the court found a clear debt, no pending appeal, prior demand and refusal, and no other adequate remedy since the respondents are protected against execution. The statutory duty to pay county funds rests on the CECM Finance, so no order should issue against the other respondents.

p. 9
03

Costs of the application

Holding

Each party to bear its own costs despite the general rule that costs follow the event.

Reasoning

Although under section 27 of the Civil Procedure Act costs follow the event, the applicant succeeded against only one of six respondents, so no costs were awarded.

p. 10

Legal principles established

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  • Mandamus lies to compel a public authority with a statutory duty to pay a decretal sum where execution is barred and there is no other adequate remedy.
  • Service on the County Attorney suffices as service on all county government departments and agencies.

Court orders

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  1. 1.An order of mandamus issued directed to the 2nd respondent, the County Executive Committee Member for Finance and Economic Planning, to pay the ex parte applicant Kshs 2,736,172.36 together with interest of 14% per annum from 11.12.2024 till payment in full.
  2. 2.The claim against the 1st, 3rd, 4th, 5th and 6th respondents is dismissed.
  3. 3.Each party shall bear its own costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

YA
majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court (leave granted for order of mandamus)

Relief refused

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Mandamus against the 1st, 3rd, 4th, 5th and 6th respondents

The specific statutory duty of payment falls on the 2nd respondent only

Costs of the application

The applicant succeeded against only one of six respondents

p. 10

Costs

Each party shall bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An order of Mandamus be and is hereby issued directed to the 2nd respondent, namely, County Executive Committee Member for Finance and Economic Planning to pay the ex parte applicant Kshs 2,736,172.36 together with interest of 14% per annum from 11.12.2024 till payment in full.
p. 11Final orders - mandamus issued
The claim against the 1st, 3rd, 4th, 5th and 6th respondents is hereby dismissed.
p. 11Final orders - dismissal against other respondents
Each party shall bear its own costs.
p. 11Final orders - costs
Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays.
p. 7Nature of mandamus
the respondents are merely trying to invoke technicalities of procedure to evade their obligation to settle the decretal amount
p. 9Respondents' conduct

Issues in the judgment

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material

Discrepancy in decretal amount between body and order

minor

Inconsistent case number for the underlying misc application

minor

Ruling signed at Thika though court sits at Mombasa

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v County Government of Mombasa & 5 others, Ex parte Miller and Company Advocates", Case Analysis (2026). ELC Judicial Review No. E011 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5744/eng@2026-09-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.