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ELRCAllowedNotice of Motion dated 23rd September 2021 (arising from ELRC Cause No. 1113 of 2015)· [2022] KEELRC 681 (KLR)

Sammy Ekatorot Nawoi v Attorney General [2022] KEELRC 681 (KLR)

Employment and Labour Relations Court
10 February 2022
2,094 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant/Decree Holder, formerly an employee of the Ministry of State for Immigration and Registration of Persons, was dismissed from the civil service in 2008 after criminal charges were withdrawn. He sued and obtained judgment on 6th December 2019 in ELRC Cause No. 1113 of 2015, with the Respondent given 90 days to settle. When payment was not made, the court issued a certificate of order against the Government on 23rd April 2021 confirming Kshs.914,471/= payable, but the debt remained unsatisfied. The Claimant moved the court by Notice of Motion seeking an order of Mandamus compelling the Principal Secretary, Ministry of Interior and Coordination of National Government, as accounting officer, to pay the decretal sum. The Respondent opposed, deponing that funds were awaited from the National Treasury and legal liability had been entered for budgetary settlement, and arguing in submissions that Mandamus is discretionary, that the court should consider the economic climate and Covid-19 pandemic, and that it should not intrude into policy. The court, per Mwaure J, held that under Section 21(4) of the Government Proceedings Act government property cannot be attached, leaving Mandamus as the sole remedy; that Section 21(3) imposes a statutory duty on the accounting officer to pay once the certificate of order is served, not conditioned on budgetary allocation or parliamentary approval; and that refusing Mandamus would leave the decree-holder with a barren decree. The application was allowed with costs to the Claimant.

Key legal issues

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01

Availability of Mandamus as the sole remedy against the Government

Holding

Mandamus is the only remedy available to enforce a monetary decree against the Government, since attachment of government property is prohibited by Section 21(4) of the Government Proceedings Act

Reasoning

The court relied on its prior decision in Cause No. 268 of 2017 and Section 21(4) of the Government Proceedings Act, holding that a decree-holder barred from executing against government property can only compel the accounting officer to pay through Mandamus. Without Mandamus, the applicant would hold a barren decree indefinitely with no effective remedy.

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02

Whether awaiting funds from the National Treasury excuses non-payment

Holding

No. The statutory duty to pay is not conditioned on budgetary allocation, and delay in remittance does not excuse non-compliance with a decree

Reasoning

The Respondent argued Mandamus is discretionary and the court should consider economic conditions and the Covid-19 pandemic. The court rejected this, finding the argument dangerous as it would render judgments and decrees futile, and noted the decree had been outstanding for about two years without payment.

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03

Nature of Mandamus

Holding

Mandamus is a prerogative order issued to compel performance of a public duty of an imperative nature owed to an individual, where there is no more appropriate remedy

Reasoning

Following Shah v Attorney General (No.3), the court held that Mandamus will be granted where the duty is a public duty affecting the individual, the authority is under a statutory or legal duty, and there is no more appropriate remedy. Here the accounting officer is under a statutory duty under Section 21(3) and no other remedy exists.

p. 2

Legal principles established

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  • A monetary decree against the Government can only be enforced by way of an order of Mandamus compelling the accounting officer to pay, as the Government is immune from execution and attachment under Section 21(4) of the Government Proceedings Act
  • Once the certificate of order is served on the Attorney General, Section 21(3) imposes a statutory duty on the accounting officer to pay, not conditioned on budgetary allocation or parliamentary approval

Court orders

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  1. 1.That the Principal Secretary in the Ministry of Interior and Coordination of National Government pay the ex-parte applicant the sum of Kshs.914,471/= in fulfilment of the court order issued in ELRC No. 1113 of 2015 from the date of filing suit until payment in full as ordered in Judgment delivered on 6th December 2019
  2. 2.That the amount of Kshs.914,471/= is due and payable as confirmed by the certificate of order against the Government dated 23rd April 2021 and the Principal Secretary is ordered to pay the same
  3. 3.Costs of the application to be paid by the Respondent

Authorities

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Legislation

  • Government Proceedings ActSection 21(4)
  • Government Proceedings ActSection 21C(1) [as quoted, being Section 21(1)]
  • Government Proceedings ActSection 21(3)
  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 159(2)(a) and (b)
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (5)

  • REPUBLIC VS THE PRINCIPAL SECRETARY STATE DEPARTMENT OF INTERIOR MINISTRY OF INTERIOR & COORDINATION OF THE NATIONAL GOVERNMENT AND MINISTRY OF THE NATIONAL TREASURY
    Cause No.268 of 2017
  • SHAH VS ATTORNEY GENERAL (NO.3)
    KAMPALA HCMC NO.31 OF 1969 (1970) EA 543
  • REPUBLIC VS THE ATTORNEY GENERAL AND ANOTHER EXPARTE JAMES ALFRED KOROSO
    Judicial Review Application No.44 OF 2012
  • REPUBLIC VS PERMANENT SECRETARY, MINISTRY OF STATE FOR PROVINCIAL ADMINISTRATION AND INTERNAL SECURITY EXPARTE FREDRICK MANOAH EQUNZA
    (2012) eKLR
  • MASANGA J. N. REPUBLIC VS TOWN CLERK OF WEBUYE COUNCIL AND ANOTHER
    HCCC NO.448 OF 2006
Jurisdiction invoked
Section 21 of the Government Proceedings Act; Articles 10, 48 and 159(2) of the Constitution

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, "Sammy Ekatorot Nawoi v Attorney General [2022] KEELRC 681 (KLR)", Case Analysis (2022). Notice of Motion dated 23rd September 2021 (arising from ELRC Cause No. 1113 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/681/eng@2022-02-10

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