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ELRCDismissedPetition No. 32 of 2020 (Application dated 8th November, 2021)· [2022] KEELRC 426 (KLR)

David Kamau Ndege v Principlal Secretary, Ministry of Health & 2 others; Public Service Commission & another (Interested Parties) [2022] KEELRC 426 (KLR)

Employment and Labour Relations Court
21 March 2022
4,369 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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You cannot sue a government official for contempt over unpaid court awards in Kenya until you first complete mandatory paperwork, including the certificate of order against Government.

What this practically means

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Executive summary

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The Petitioner, who had obtained a judgment from Ongaya J on 23rd October 2020 in Petition No. 32 of 2020 — including declarations, certiorari quashing a show-cause letter, mandamus compelling payment of salary arrears since 2010, and costs — applied by notice dated 8th November 2021 for the Principal Secretary of the Ministry of Health, Susan Mochache, to be cited for contempt and committed to civil jail for disobeying the decree. He asserted the decree was served on 6th November 2020, no stay was granted, and the Respondent failed to reinstate him on the payroll despite repeated letters. The Respondent opposed, contending the application was premature and incompetent because no bill of costs had been taxed, no certificate of costs or certificate of order against Government had been issued under section 21 of the Government Proceedings Act and Order 29 Rule 3 of the Civil Procedure Rules. The Petitioner argued constitutional petitions under Article 22 and the Mutunga Rules are not subject to the Civil Procedure Rules. Ocharo Kebira J framed four issues and held that the 2013 Practice and Procedure Rules do not cater for post-judgment execution and, being subsidiary legislation, cannot oust section 21 of the Government Proceedings Act, which applies mandatorily even to constitutional petitions. A certificate of order against Government and taxation of costs are prerequisites to enforcement. Having made no compliance, the Applicant's contempt application collapsed and was dismissed, with liberty to institute contempt proceedings only after compliance and continued default.

Key legal issues

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01

Whether constitutional petitions under Article 22 are exempt from the Government Proceedings Act execution procedure

Holding

No. Section 21 GPA applies to post-judgment enforcement even in constitutional petitions; the Mutunga Rules, being subsidiary legislation, cannot oust a statute.

Reasoning

The court noted the 2013 Practice and Procedure Rules are silent on post-judgment execution, making it necessary to invoke relevant procedures in other statutes. Section 21 GPA sets an elaborate mandatory procedure for decree-holders against Government, serving accountability purposes; nothing in the Mutunga Rules ousts it, and subsidiary legislation cannot override a statute.

p. 5
02

Whether costs must be taxed and a certificate of costs issued before enforcement

Holding

Yes. Section 94 of the Civil Procedure Act and Order 29 Rule 3 of the Civil Procedure Rules apply; the Applicant must tax party and party costs and extract a certificate before enforcing the decree.

Reasoning

The court agreed with Kartar Singh Dhugar that a decree cannot be executed before costs are ascertained absent leave. The certificate is an accounting document; the accounting officer cannot pay decree sums without it, so a claim of contempt premised on non-payment is premature until compliance.

p. 6
03

Whether the Principal Secretary was guilty of contempt

Holding

The court declined to determine contempt because the prerequisite documents enabling settlement of the decree had not been obtained and availed to the accounting officer.

Reasoning

Since the certificate of order against Government had not been issued or served, it made no sense to inquire into contempt of a decree whose settlement could not yet lawfully proceed. Contempt proceedings would only be open to the Applicant after full compliance with section 21 GPA and section 94 CPA and continued non-compliance by the Respondent.

p. 6

Legal principles established

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  • The procedure under section 21 of the Government Proceedings Act is mandatory and applies to decrees arising from constitutional petitions under Article 22; the Mutunga Rules do not oust it.
  • A decree-holder against the Government must obtain and serve a certificate of order against Government, and have party and party costs taxed, before commencing execution or enforcement.

Court orders

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  1. 1.The Application dated 8th November, 2021 is dismissed.
  2. 2.The Petitioner is directed to comply with section 21 of the Government Proceedings Act and section 94 of the Civil Procedure Act: to have the costs taxed, extract and serve the certificate of order against Government.
  3. 3.The Petitioner shall be at liberty to initiate contempt proceedings only after compliance and if there is failure to comply with the decree.

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 13, 22, 48, 73, 159(2)(d), 232
  • Government Proceedings ActSection 21
  • Civil Procedure ActSection 94; Section 1B
  • Civil Procedure Rules, 2010Order 29 Rule 3; Order 21 Rule 1
  • Employment and Labour Relations Court (Procedure) RulesRule 7
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2013General
  • Law Reform ActSections 8 and 9

Cases cited (7)

  • Francis Angueyah Ominde & Another -Vs- Vihiga County Executive Committee Members, Finance Economic Planning and 3 Others; Controller of Budget and 10 others Interested Parties
  • John Florence Maritime Services Limited and Another Vs Cabinet Secretary, Transport and Infrastructure and 3 Others
    (2021) eKLR
  • Republic -vs- National Police Service Commission and Another Ex-parte Dr. Major (Retired) Shadrack Mutia Muiru
    High Court Judicial Review Miscellaneous Application No. E029 of 2021
  • Republic -vs- County Secretary Kiambu County & 2 others Ex-parte Daniel K. Mwaura t/s Karuru Mwaura & Company Advocates
    [2021] eKLR
  • Obadia Mutisya Kitonyi -vs- Attorney General; Director and Pensions Department & Another [Ganishee]
    [2021] eKLR
  • Kartar Singh Dhugar & Co. Limited -vs- Lianard Holdings Limited
    [2017] eKLR
  • Exad Suppliers and General Contracts -vs- NCPC
    Misc. Civil Case No. 639 of 2009 [UR]
Jurisdiction invoked
Article 22 of the Constitution; Employment and Labour Relations Court (Procedure) Rules; enforcement of judgment in Petition No. 32 of 2020 delivered by Ongaya J on 23rd October 2020

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, "David Kamau Ndege v Principlal Secretary, Ministry of Health & 2 others; Public Service Commission & another (Interested Parties) [2022] KEELRC 426 (KLR)", Case Analysis (2022). Petition No. 32 of 2020 (Application dated 8th November, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/426/eng@2022-03-21

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