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ELRCDismissedJudicial Review Application (Ex Parte Bore Halake)· [2022] KEELRC 1380 (KLR)

Republic v Principal Secretary, Ministry of Defence & 2 others (Judicial Review Application E011 of 2020) [2022] KEELRC 1380 (KLR)

Employment and Labour Relations Court
4 July 2022
MOMaureen Onyango
2,511 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 Ex Parte Applicant, a former Kenya Defence Forces corporal discharged on medical grounds in 2009, obtained a judgment in ELRC Petition No. 7 of 2012 (delivered 16th October 2013) awarding him gratuity of Kshs.1,714,435, compensation assessed at 40% disability, and payment in lieu of 90 days terminal leave. Because the decretal sums remained unpaid, he sought orders of mandamus commanding the Principal Secretary, Ministry of Defence to comply with the judgment, to compute the disability compensation, and in default to have the Principal Secretary arrested and jailed for six months, plus costs. The Respondents, through the affidavit of Major John Dickson Nzauka, opposed the application as premature and an abuse of process, contending that the Applicant had refused to clear with the Kenya Defence Forces and render military stores, a condition precedent to payment contemplated by the 2013 judgment itself. Justice Maureen Onyango found it common ground that non-payment resulted solely from the Applicant's failure to clear. His assertion that the clearance requirement only came into force in 2020 and could not apply retrospectively was unsupported by evidence and contradicted by the 2013 judgment, which expressly noted he was bound to clear before payment. Regulation 69(6) of the Public Service Commission Regulations, 2020, not being in force at the time of the judgment, did not assist him. Holding that the Applicant's misfortunes were of his own creation, the court dismissed the suit with no orders for costs on 4th July 2022.

Key legal issues

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01

Whether mandamus could issue to compel payment of the 2013 judgment debt

Holding

No - the Applicant was the author of the non-payment, having failed to clear with the Respondent as the judgment itself required

Reasoning

The court observed that the 2013 judgment expressly recorded that the Petitioner was bound to clear with the Respondent before payment of terminal benefits. The Applicant's claim that the clearance requirement only came into force in 2020 was unsupported by evidence, and Regulation 69(6) of the Public Service Commission Regulations, 2020 was not in force at the time of the judgment and did not aid him. Mandamus being an equitable remedy demands clean hands.

p. 6
02

Whether the clearance requirement introduced in 2020 applies retrospectively to a 2013 judgment

Holding

The court found the Applicant's argument mistaken, noting the underlying judgment itself recorded a pre-existing clearance obligation

Reasoning

The Applicant deposed that the clearance stipulation came into effect in 2020 and could not apply retrospectively. The court rejected this, holding that the requirement predated the 2013 judgment as shown in its own text, and that the Applicant adduced no proof that clearance was introduced only after the judgment.

p. 5

Legal principles established

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  • Clearance from employment is a condition precedent to payment of terminal dues to a departing public officer, and mandamus will not issue to a party who has not fulfilled it

Court orders

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  1. 1.The suit is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 41, 47, 48, 159(2)(d)
  • Fair Administrative Actions ActSection 7(2)
  • Civil Procedure RulesOrder 29 Rule 3; Order 53; Order 21 Rule 1
  • Public Service Commission RegulationsRegulation 69(6)
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Bore Halake v Attorney General & Another
    Nairobi Employment and Labour Relations Court Petition No. 7 of 2012
  • Linsey Atieno Ojwang v Fusion Capital Limited
    [2017] eKLR
  • Anthony Nyaheri Moturi v Gilani's Supermarket Limited
    [2019] eKLR
  • Zachary Ochako v Kenya Broadcasting Corporation
    [2014] eKLR
Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules, 2010 seeking orders of mandamus to enforce judgment in Nairobi Employment and Labour Relations Court Petition No. 7 of 2012

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, "Republic v Principal Secretary, Ministry of Defence & 2 others (Judicial Review Application E011 of 2020) [2022] KEELRC 1380 (KLR)", Case Analysis (2022). Judicial Review Application (Ex Parte Bore Halake). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1380/eng@2022-07-04

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