Judy Wathata Kinyua v County Government of Kirinyaga & 2 others

THE COUNTY GOVERNMENT OF KIRINYAGA………1ST RESPONDENT THE COUNTY ATTORNEY, COUNTY GOVERNMENT OF KIRINYAGA……………2ND RESPONDENT THE CHIEF OFFICER-FINANCE & ECONOMIC PLANNING COUNTY GOVERNMENT OF KIRINYAGA……………3RD RESPONDENT JUDGMENT 1. Before the Court for determination is the Originating Motion dated 30 th October 2025, through which the Applicant seeks the following orders: 1. An order of mandamus be issued against the Respondent (sic) herein compelling it to satisfy this Honourable Court’s decree issued on 5th July 2023 in Nyeri Civil Appeal No. 77 of 2019-the County Government of Kirinyaga & another v Judy Wathata Kinyua as particularized in the certificate of order against the government dated 20th May 2025 and issued by this Honourable Court. 2. Such further or any other order as the court may deem just and expedient to grant. 3. Costs of this application be borne by the Respondents. 2. The Motion is premised on the grounds set out in the Supporting Affidavit sworn on 30th October 2025 by Judy Wathata Kinyua, the Applicant herein. 2

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Ms. Kinyua deposes that the proceedings herein arise from Nyeri ELRC Petition No. 11 of 2018, Judy Wathata Kinyua v County Government of Kirinyaga & another, in which judgment was entered in her favour in the sum of Kshs. 3,378,375.00, together with costs and interest at court rates from the date of judgment until payment in full. Consequently, a decree dated 19 th March 2019 was issued. 3. She avers that, being dissatisfied with the judgment, the 1 st Respondent lodged Nyeri Civil Appeal No. 77 of 2019, County Government of Kirinyaga & another v Judy Wathata Kinyua, to which she filed a cross-appeal. 4. Ms. Kinyua further deposes that judgment in the appeal was delivered on 13 th May 2022 in her favour, with the judgment of the trial Court being upheld. She adds that the award in her favour was enhanced by a further sum of Kshs. 1,606,027.50 on account of service gratuity for the period served. An amended decree was subsequently issued on 5th July 2023 to give effect to the appellate Court’s decision. 5. According to Ms. Kinyua, the total decretal sum thereby stood at Kshs. 4,984,402.50, exclusive of interest. 3

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6. She states that on 6th July 2023, her advocates wrote to the advocates for the 1 st Respondent demanding settlement of the decretal sum. Inclusive of costs and interest accrued up to 18th February 2019, the amount claimed stood at Kshs. 7,941,134.02. 7. Ms. Kinyua avers that, in response, counsel for the 1st Respondent proposed to settle the decretal sum of Kshs. 7,941,134.02 in two equal instalments, with the first instalment payable on or before 31st December 2023 and the second on or before 29th February 2024. 8. She deposes that, notwithstanding the foregoing proposal, the 1 st Respondent failed to honour its commitment, with the amount due, inclusive of accrued interest, standing at Kshs. 8,898,138.55 as at 18th February 2025. 9. Ms. Kinyua further avers that, by a letter dated 11 th March 2025, her advocates served the Governor of the 1st Respondent, the Chief Officer in charge of Finance and the County Attorney with a demand for payment of Kshs. 8,898,138.55 within seven (7) days. She contends that the demand elicited no response, and the stipulated period lapsed without settlement of the decretal sum. 10.She states that she thereafter moved the Court, which issued a Certificate of Order against the Government dated 20th May 2025. 4

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11.Ms. Kinyua contends that the Respondents have demonstrated no intention of complying with the judgment and decree and have offered no explanation for their failure or refusal to satisfy the decree issued in her favour. She further states that, as at 30th September 2025, the decretal amount had accrued to Kshs. 9,536,181.07. 12.The Respondents opposed the Originating Motion through Grounds of Opposition dated 5th December 2025, in which they contend as follows: a) The Applicant has not complied with the mandatory provisions of the Government Proceedings Act; b) The Application is premature and incompetent in light of the material non-compliance with the mandatory provisions of the Government Proceedings Act. Submissions 13.The Motion was canvassed by way of written submissions. It has been submitted on behalf of the Applicant that she duly obtained a Certificate of Order against Government dated 20th May, 2025, and served the same upon the Respondents. That consequently, the 4th Respondent, being the Accounting Officer of the 1st Respondent, was placed under a mandatory statutory duty to satisfy the decree, together with the costs and accrued interest. 5

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14.It is the Applicant’s position that the Respondents' failure and refusal to perform that duty is unlawful and is precisely the kind of default that warrants the issuance of the order of mandamus she has sought. In support of the Applicant’s position, reference was made to the cases of Raghbir v County Executive Committee Member (CEC) of The Ministry of Public Works, Road & Transport, County Government of Kajiado & another [2025] KEELC 8588 (KLR) and Republic vs Permanent Secretary, Office of The President Ministry of Internal Security & Another ex parte Nassir Mwandihi [2014] eKLR. 15.It was further submitted that the Respondents’ continued failure to satisfy the judgment not only denies the Applicant the fruits of a lawful judgment but also offends constitutional values relating to respect for judicial authority and is tantamount to disobedience of court orders, which amounts to contempt. 16.The Applicant further submits that contrary to the Respondent’s assertion in their Grounds of Opposition, she has fully complied with the requirements of the Government Proceedings Act. 17.On 15th July 2026, the Respondents were granted 10 days within which to file their written submissions. However, as at the time of writing this Judgment, the 6

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Respondents’ written submissions were neither traceable on the Court’s physical record nor the online portal (Case Tracking System). Analysis and Determination 18.Having considered the Originating Motion, the Respondents' Grounds of Opposition and the Applicant’s written submissions, the singular issue that arises for determination is whether the Applicant has met the requisite threshold for the grant of an order of mandamus as sought. 19.The Court of Appeal in Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR), while citing with approval Halsbury’s Laws of England, 4 th Edition, Vol. 7 at paragraph 89, stated as follows regarding the nature and scope of an order of mandamus: “The order of mandamus is of most extensive remedial nature and is in form, of a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal 7

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remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual." At paragraph 90 headed “the mandate” it is stated: “The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.” These principles mean that an order of mandamus compels 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.” 20.Through the present Originating Motion, the Applicant seeks an order compelling the Respondents to satisfy the decree issued by the Court on 5 th July 8

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2023 in Nyeri Civil Appeal No. 77 of 2019, County Government of Kirinyaga & another v Judy Wathata Kinyua. 21.The Respondents’ principal contention is that the Motion is premature on the ground that the Applicant has not complied with the mandatory requirements of the Government Proceedings Act. Despite this contention, the Respondents did not identify the specific requirement under the Government Proceedings Act with which the Applicant is alleged to have failed to comply. 22.Given that the 1st Respondent is a County Government established pursuant to Article 176 of the Constitution, and that the 2nd and 3rd Respondents are its officers, the enforcement of a decree against the Respondents is subject to the procedure prescribed under Section 21 of the Government Proceedings Act, which provides as follows: “21(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty9

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one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order: Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant. (2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General. (3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon: Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein. 10

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(4) Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs. 23.For the avoidance of doubt, the said Section 21 applies to County Governments by virtue of subsection (5), which is framed as follows: “(5) This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.” 24.In the present case, it is not in dispute that judgment was entered in favour of the Applicant in Nyeri ELRC Petition No. 11 of 2018 and that the Court of Appeal upheld the judgment of the trial Court while allowing the Applicant’s cross-appeal, thereby enhancing the award by a further sum of Kshs. 1,606,027.50 together with interest. 11

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25.Similarly, there is no evidence controverting the Applicant’s assertion that she obtained a Certificate of Order against Government dated 20 th May 2025 and duly served it upon the Respondents in compliance with Section 21 of the Government Proceedings Act. 26.Indeed, in support of the present Motion, the Applicant annexed to her Supporting Affidavit a copy of the Certificate of Order against Government dated 20th May 2025, by which the Court certified that the 1 st Respondent was liable to pay the Applicant Kshs. 8,887,008.35, being the decretal sum, accrued interest and taxed costs as at 18th April 2025. 27.Notably, the Respondents have neither denied nor otherwise disputed their knowledge of the decree. Indeed, by a letter dated 12 th September 2023, the Respondents’ advocates indicated to the Applicant’s advocates that the Respondents were willing to settle the decretal sum in two (2) equal instalments. 28.Notwithstanding the foregoing, there is no evidence on record demonstrating that the Respondents have settled the decretal sum due and owing to the Applicant. 12

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29.The court concurs with the decision in the case of Republic v Town Clerk of Webuye County Council & another [2014] KEHC 7207 (KLR) that a decree holder’s right to enjoy fruits of his judgment must not be thwarted and that the Court should adopt an interpretation that favours enforcement and, as far as possible, secures accrued rights. 30.It is not in contest that the Respondents are under a statutory and legal obligation, pursuant to Section 21 of the Government Proceedings Act, to satisfy the decree issued in favour of the Applicant, who is the lawful decreeholder herein. 31.In the circumstances, the Court is satisfied that the Applicant has established a basis for the grant of an order of mandamus. 32.Accordingly, the Originating Motion dated 30th October 2025 is found to be meritorious and is hereby allowed. 33.Consequently, an order of mandamus is issued compelling the Respondents to comply with the decree issued on 5 th July 2023 by settling the sum of Kshs. 8,887,008.35, being the amount certified as due and owing in the Certificate of Order against Government dated 20th May 2025. 13

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34.As these proceedings were occasioned by the Respondents’ failure to satisfy the decree, the Respondents shall bear the costs of the suit. DATED, SIGNED and DELIVERED at NYERI this 25th day of September, 2026. ……………………………… STELLA RUTTO JUDGE In the presence of: For the Applicant Ms. Nayakoa For the Respondents Mr. Barasa Court assistant Ndati ORDER In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering 14

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justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. STELLA RUTTO JUDGE 15

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