Republic v County Government of Kisumu & 3 others; Nakitari (Exparte Applicant) (Judicial Review Application E002 of 2024) [2024] KEELRC 1203 (KLR)
The bottom line
#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 ex parte applicant complied with the conditions precedent to enforcement of a decree against a county government, namely obtaining and serving a Certificate of Order against the Government under section 21 of the Government Proceedings Act and Order 29 Rule 3 of the Civil Procedure Rules
Key legal issues
#Whether enforcement proceedings against the government are competent without a Certificate of Order against the Government
The Motion was struck out as incompetent because the applicant failed to exhibit a Certificate of Order against the government under section 21 of the Government Proceedings Act and Order 29 Rule 3 of the Civil Procedure Rules.
The Court, applying R v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex-parte Fredrick Manoah Egunza, held that a Certificate of Order against the Government is a condition precedent to mandamus enforcing a money decree against the government. Where execution is against a County Government, the certificate should be served on the County Attorney rather than the Hon Attorney General. The applicant obtained and served a decree and formally demanded payment, but did not exhibit or explain the absence of the certificate, so the proceedings were incompetent.
Legal principles established
#- A Certificate of Order against the Government, issued after expiration of 21 days after entry of judgment and served on the County Attorney (in the case of a county government), is a condition precedent to enforcement of money decrees against the government, and payment thereon is not conditioned on budgetary allocation or parliamentary approval
- Decrees against a county government are enforced only by way of mandamus compelling the accounting officer, the government being immune from attachment under section 21(4) of the Government Proceedings Act
Court orders
#- 1.The Motion dated 7 February 2024 and filed in Court on 8 February 2024 is struck out for being incompetent
- 2.No order on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court, with leave granted on 5 February 2024 to commence judicial review proceedings; execution against government governed by section 21 of the Government Proceedings Act
Relief refused
#The judicial review relief sought in the Motion (mandamus to compel payment of the decretal amount)
The applicant did not exhibit a Certificate of Order against the government, a condition precedent to execution against the government, rendering the proceedings incompetent
Costs
No order on costs as the Respondents did not file a response within the agreed timelines.
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.
This Court endorses and applies the holding in the above-cited decision that a Certificate of Order against the government should have been obtained and served upon the County Attorney (instead of Hon Attorney General as the execution is against a County Government).
The ex parte applicant herein has not exhibited any Certificate of Order against the government or explained whether such a Certificate was issued.
In light of the above, the Court strikes out the Motion dated 7 February 2024 and filed in Court on 8 February 2024 for being incompetent.
No order on costs as the Respondents did not file a response within the agreed timelines.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Government of Kisumu & 3 others; Nakitari (Exparte Applicant) (Judicial Review Application E002 of 2024) [2024] KEELRC 1203 (KLR)", Case Analysis (2024). Judicial Review Motion dated 7 February 2024, filed 8 February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1203/eng@2024-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.