Republic v County Secretary, Country Government of Kiambu & another [2020] KEELRC 1686 (KLR)
The bottom line
#Kenya's High Court ordered Kiambu County's Finance Chief Officer to pay a Kshs 17 million judgment debt, confirming mandamus targets the Accounting Officer, not the County Secretary.
What this practically means
#Executive summary
#Key legal issues
#Whether the application is incompetent for failure to serve notice under Section 13A of the Government Proceedings Act
The objection lacks merit because judicial review proceedings under Order 53 are sui generis and are governed only by Order 53 and its rules
The respondent argued that no proceedings may be instituted against the Government until thirty days after service of written notice under Section 13A. The applicant responded that notice was served before the primary suit and that the present matter is merely an enforcement application. The court held that judicial review proceedings under Order 53 are sui generis and do not depend on any other procedural law, and accordingly dismissed the objection for lack of proper basis.
Whether the threshold for mandamus was met against the Chief Officer
Yes - the 2nd Respondent is the Accounting Officer with a legal duty to pay genuine debts of the county government, and the decree remained unsatisfied
The applicant held a valid, unsatisfied decree against the county government, which the respondents had been made aware of by letter dated 16.4.2018. The respondents admitted they had not refused to pay. The court found the 2nd Respondent to be the Accounting Officer of the judgment debtor with the legal duty to pay debts, and relying on the Kenya National Examination Council precedent, found the threshold for mandamus satisfied against the 2nd Respondent.
Whether mandamus could issue against the County Secretary
No - the County Secretary is not the Accounting Officer and does not play the finance role under the County Government Act
The court found that the 1st Respondent, the County Secretary, is not the Accounting Officer and suspected the applicant misidentified the job title. Since the County Secretary does not play the finance role under the County Government Act, mandamus cannot compel a person who is not duty bound to perform the act sought. The application against the 1st Respondent was therefore dismissed with no costs.
Legal principles established
#- Judicial review proceedings under Order 53 are sui generis and do not depend on procedural requirements outside Order 53 and its rules
- Mandamus compels performance of a public duty imposed by statute and lies only against a person or body that has failed to perform such a duty to the detriment of a party with a legal right to its performance
- Mandamus cannot issue against an officer who is not duty bound to do what the order compels
Court orders
#- 1.An order of mandamus issued against the 2nd Respondent (Chief Officer, Finance, ICT and Economic Planning, Kiambu County Government) to pay the decretal sum of Kshs. 17,201,960 as per the decree dated 8th October 2018 in CMCC No. 175 of 2016
- 2.Accrued interest from the date of the decree to payment in full to be borne by the respondents
- 3.Costs of the application and the chamber summons dated 9th October 2018 to be borne by the respondents
- 4.The application dismissed as against the 1st Respondent with no costs
- Jurisdiction invoked
- Judicial review under Order 53 of the Civil Procedure Rules seeking an order of mandamus to enforce a decree against a county government
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Secretary, Country Government of Kiambu & another [2020] KEELRC 1686 (KLR)", Case Analysis (2010). Judicial Review Notice of Motion dated 24.12.2018 (enforcement of decree in Kiambu CMCC No. 175 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1686/eng@2020-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.