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ELRCDismissedNot stated in judgment (consolidated applications dated May 6, 2022)· [2023] KEELRC 638 (KLR)

Wambugu & 5 others v County Public Service Board, Kirinyaga County (Petition 6, 7, 8, 9, 10 & 11 of 2019 (Consolidated)) [2023] KEELRC 638 (KLR)

Employment and Labour Relations Court
3 March 2023
OMONESMUS N. MAKAU
1,265 words in judgment
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The bottom line

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You cannot jail county officials for unpaid court awards in Kenya until a court first orders the accounting officer, through judicial review, to pay the decree.

What this practically means

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Executive summary

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The petitioners/applicants, who had obtained judgment on March 31, 2020 against the Kirinyaga County Government in terms of an injunction, reinstatement, Kshs 500,000 damages each, and costs plus interest, brought consolidated applications dated May 6, 2022 seeking the committal of the County Secretary and all members of the Kirinyaga County Public Service Board to civil jail for six months for failing to satisfy the decree. The respondent filed no replying affidavit but opposed on points of law, arguing that Section 21(4) of the Government Proceedings Act, Article 176(1) of the Constitution and Order 29 Rule 2(2) of the Civil Procedure Rules bar execution against the government, and that the proper remedy is judicial review for mandamus against the accounting officer. Justice Onesmus N. Makau held that Order 29 Rule 2 expressly prohibits execution orders against the government under Order 22, that a county government enjoys the status of Government under Section 21(5) of the Government Proceedings Act, and relied on precedent confirming that counties are 'the Government' for these purposes. The court found the applications premature and fatally incompetent, dismissed them with costs, and directed that the matter was closed except for execution through judicial review proceedings for mandamus, after which committal of the accounting officer could be sought upon non-compliance.

Key legal issues

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01

Whether committal to civil jail under Order 22 Rule 31 lies against a county government without first obtaining an order of mandamus

Holding

Application premature and fatally incompetent; a county government enjoys the status of Government and is shielded from execution under Order 29 Rule 2 and Section 21 of the Government Proceedings Act

Reasoning

Order 29 Rule 2 expressly bars orders against the Government under Order 22 (execution of decrees). Section 21(5) of the Government Proceedings Act extends the protection to county governments, and precedent confirms a county government is 'the Government'. Execution is only permissible via mandamus in judicial review compelling the accounting officer, after which committal may follow for non-compliance. The applicants sought no mandamus, so the application had no legs to stand.

p. 3
02

Whether the application should be allowed

Holding

Dismissed with costs

Reasoning

Having found the application to be a direct attempt at execution against the government without the prerequisite mandamus, the court held it could not yield valid orders as it offended the law, dismissed it with costs and closed the matter except for execution through the stated manner.

p. 4

Legal principles established

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  • No execution of decrees may issue against a county government under Order 22 of the Civil Procedure Rules; the only remedy is judicial review for an order of mandamus compelling the accounting officer to satisfy the decree, after which committal proceedings may be brought

Court orders

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  1. 1.Application dismissed
  2. 2.Costs awarded to the respondent
  3. 3.Matter closed except for execution through judicial review proceedings for mandamus against the accounting officer

Authorities

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Legislation

  • Government Proceedings Act, Cap 40 Laws of KenyaSection 21(4)
  • Government Proceedings Act, Cap 40 Laws of KenyaSection 21(5)
  • Constitution of Kenya, 2010Article 176(1)
  • Civil Procedure RulesOrder 22 (Execution of decrees and orders), Order 22 Rule 31, Order 29 Rule 2(2)
  • Civil Procedure RulesOrder 14 Rule 4 (impounding of documents)

Cases cited (5)

  • Kilimanjaro Safari Club Ltd v Governor-Kajiado County (in place of County of Ol Kejuado
    (2014) eKLR
  • Republic v Attorney General & Another, Exparte Stephen Wanyee Roki
    (2016) eKLR
  • Republic v County Secretary, Nairobi City County & another, Exparte Wachira Nderitu Ngugi & Co Advocates
    (2016) eKLR
  • Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security, Exparte Fredrick Manoah Egunza
    (2012) eKLR
  • Stephen Wanyee Roki v K-Rep Bank Ltd & 2 others
    (2016) eKLR
Jurisdiction invoked
Original enforcement jurisdiction under the Civil Procedure Rules (Order 22 Rule 31) as against the bar in Order 29 Rule 2 and Section 21 of the Government Proceedings Act, Cap 40; Article 176(1) of the Constitution cited by respondent

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, "Wambugu & 5 others v County Public Service Board, Kirinyaga County (Petition 6, 7, 8, 9, 10 & 11 of 2019 (Consolidated)) [2023] KEELRC 638 (KLR)", Case Analysis (2023). Not stated in judgment (consolidated applications dated May 6, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/638/eng@2023-03-03

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