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ELRCDismissedCause No 3 of 2018· [2021] KEELRC 2228 (KLR)

Francis Atanasio Kithure v County Government of Meru; Ethics &Anti;-Corruption Commission (Interested Party) [2021] KEELRC 2228 (KLR)

Employment and Labour Relations Court
3 February 2021
DMD.K. Njagi Marete
3,419 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court dismissed Meru County's attempt to block execution of a taxed costs bill, ruling strict procedure cannot defeat justice.

What this practically means

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Executive summary

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The County Government of Meru, as Respondent/Objector, raised a preliminary objection dated 8th July 2020 against execution proceedings founded on a taxed bill of costs of Kshs.230,448.00, and against a notice to show cause addressed to the County Secretary and CEC member, Finance. It argued that under Section 21 of the Government Proceedings Act, the County Government Act and the Constitution, the only lawful route to compel payment was a judicial review application for mandamus under Order 53, and that no certificate of order and costs had been extracted and served, rendering the execution and notice null and void ab initio. It relied on Mukhisa Biscuits, Nassir Mwadhihi, Kisya Investments and Republic vs. County Secretary Migori. The Claimant/Respondent opposed, contending the mandamus procedure was long, expensive and hardship-ridden, invoking Section 3 of the Employment and Labour Relations Court Act, Section 3A of the Civil Procedure Act and Article 159(2)(d), and arguing estoppel from the objector's earlier willingness to settle. The court framed the matter as turning on the nature of procedural technicalities. It held that Section 21 is a legitimate procedural provision, but its invocation as a 'comply or no more' rebuff was harsh and unfair; the overriding objective and Article 159(2)(d) demanded substantive justice. While endorsing the principle behind the mandamus requirement, the court held it must be justified by circumstances, urging Parliament to restructure it given devolution. The preliminary objection was dismissed with each party bearing their own costs.

Key legal issues

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01

Nature of procedural technicalities and the overriding objective

Holding

Section 21 of the Government Proceedings Act is a legitimate procedural provision, but its invocation to defeat satisfaction of a taxed bill of costs is a procedural technicality that the court may disregard in favour of substantive justice

Reasoning

The court characterised Section 21 of the Government Proceedings Act as a legitimate procedural technicality. The overriding objective and Article 159(2)(d) require courts to mete out just, expeditious and proportionate justice. Raising the statutory procedure as a 'comply or no more' rebuff to execution was held unfair and harsh; the Claimant's case overwhelmed the objector's, so the objection failed.

p. 3
02

Application for mandamus as precondition to execution against government

Holding

While the court agrees with the principle behind the mandamus requirement in government proceedings, its application must be justified by the circumstances of the case

Reasoning

The court expressly agreed with the philosophy requiring mandamus in government proceedings but held that the requirement, whose foundations are 'victorian, if not outrightly medieval', must now be justified by the circumstances. With devolution multiplying government entities, Parliament was urged to restructure the requirement.

p. 4

Legal principles established

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  • Strict statutory execution procedure against a government entity may be treated as a procedural technicality that a court may disregard in favour of substantive justice

Court orders

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  1. 1.The preliminary objection dated 8th July 2020 is dismissed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • The Government Proceedings ActSections 21(1),(2),(3),(4),(5); 32
  • The County Government Act No.17 of 2012Section 2
  • Constitution of Kenya 2010Articles 159(2)(d), 167, 176, 260
  • Civil Procedure RulesOrders 28, 29 (rule 3), 53; Appendix A Forms 22 and 23
  • Employment and Labour Relations Court Act, 2014Section 3
  • Civil Procedure ActSection 3A
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (12)

  • Mukhisa Biscuits Company Ltd Vs. West End Distributors Ltd
    (1969) EA 696
  • 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
  • Kisya Investments Ltd vs. Attorney General & Another
    (2005) 1 KLR 74
  • Republic vs. County Secretary Migori County Government & Another
    (2018) eKLR
  • Abdirahman Abdi also known as Abdirahman Muhumed Abdi V. Safi Petroleum Products Ltd. & 6 others
    Civil Application No. Nai. 173 of 2010
  • Republic –vs- National Government Constituency Development Fund Board & another
    Judicial Review 2 of 2017 (2017) eKLR
  • Hunker Trading Company Limited vs Elf Oil Kenya Limited
  • Kamani vs. Kenya Anti-Corruption Commission
  • Bigizi vs Bank Leisure
Jurisdiction invoked
Employment and Labour Relations Court Act, 2014; Civil Procedure Act and Rules (execution proceedings)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Francis Atanasio Kithure v County Government of Meru; Ethics &Anti;-Corruption Commission (Interested Party) [2021] KEELRC 2228 (KLR)", Case Analysis (2021). Cause No 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2228/eng@2021-02-03

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