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ELRCStruck OutJudicial Review Application (Notice of Motion) dated 19th April, 2019· [2020] KEELRC 1019 (KLR)

Republic v County Government of Nakuru & another; James Mwangi Muraya (Ex parte) [2020] KEELRC 1019 (KLR)

Environment and Land Court / High Court (judicial review)
27 April 2020
MMM. Mbaru
1,687 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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You cannot force a Kenyan county government to pay a court decree through mandamus until you obtain and serve both a certificate of costs and a certificate of order.

What this practically means

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Executive summary

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The ex parte applicant sought an order of mandamus compelling the 2nd respondent to satisfy the decree issued in Nakuru ELRC Cause No.124 of 2016, in which he was awarded salary arrears, accrued overtime and lap trust contributions of Ksh.617,432.60 plus costs, together with the certificate of costs issued on 4th December 2018. The respondents opposed, contending that the applicant had not complied with section 21 of the Government Proceedings Act, in particular the requirement to obtain and serve a certificate of order on the Attorney General within 21 days, rendering the application defective. The court held that as a county government, the respondent is bound by the Government Proceedings Act by dint of section 21(5), and that the elaborate procedure under section 21 and Order 29 of the Civil Procedure Rules must be strictly complied with before mandamus can issue. Although the applicant had a decree and a certificate of costs, he had no Certificate of Order and had not proved service of the required certificates. The court found the applicant had not fully complied with the legal requirements for mandamus, held the application premature, struck out the notice of motion dated 19th April 2019, and ordered each party to bear their own costs. Judgment was delivered electronically on 27th April 2020 pursuant to COVID-19 court operation directives.

Key legal issues

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01

Compliance with section 21 Government Proceedings Act as precondition to mandamus

Holding

The applicant must obtain a Certificate of Order in addition to the certificate of costs, serve it, and demonstrate compliance before mandamus can issue

Reasoning

Section 21(5) applies the Government Proceedings Act to county governments. The procedure for execution of money decrees against government requires a certificate of costs and a certificate of order, served, with a demand for payment. The applicant had a decree and certificate of costs but no certificate of order, so the application was premature.

p. 3

Legal principles established

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  • Before mandamus compelling a county government to pay a decree is issued, the procedure under section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules must be strictly complied with
  • After obtaining the certificates, there must be proof of service on the respondents

Court orders

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  1. 1.The Notice of Motion dated 19th April, 2019 is struck out
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Government Proceedings Actsection 21 (including 21(5))
  • Civil Procedure RulesOrder 53 Rule 1; Order 29; Order 22
  • Law Reform Actsections 8 and 9
  • Constitution of KenyaArticles 176 and 6

Cases cited (5)

  • Permanent Secretary Office of the President Ministry of Internal Security & Another ex parte Nassir Mwadhihi
    (2014) eKLR
  • The District Commissioner Kiambu vs. R and Others Ex Parte Ethan Njau
    Civil Appeal No. 2 of 1960 [1960] EA 109
  • R vs The Brecknock And Abergavenny Canal Co.
    111 ER
  • R vs. The Bristol and Exeter Railway Co
    114 ER 859
  • Republic versus County Secretary Migori County Government & another
    [2019] eKLR
Jurisdiction invoked
Order 53 Rule 1 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act

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 Nakuru & another; James Mwangi Muraya (Ex parte) [2020] KEELRC 1019 (KLR)", Case Analysis (2020). Judicial Review Application (Notice of Motion) dated 19th April, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1019/eng@2020-04-27

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