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ELRCStruck OutJudicial Review Motion (ex-parte applicant) arising from leave granted 19 June 2023 (number not stated in judgment)· [2023] KEELRC 2976 (KLR)

Republic v Maurice Otunga, County Executive Committee Member, Finance & another; Nyamori (Exparte Applicant) (Judicial Review Application E022 of 2023) [2023] KEELRC 2976 (KLR)

Employment and Labour Relations Court
22 November 2023
507 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kenya court struck out a bid to force Migori County to pay a judgment debt because the applicant never served the required documents first.

What this practically means

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Executive summary

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The ex-parte applicant, Erastus Onyango Nyamori, obtained leave on 19 June 2023 to commence judicial review proceedings against Maurice Otunga and the County Government of Migori, seeking to enforce a judgment of 17 February 2021 in Kisumu Cause No. 308 of 2014 in which he was awarded Kshs 3,600,000/- compensation and gratuity to be computed. A decree issued on 18 May 2021, a Certificate of Costs on 4 May 2023 and a Certificate of Order against the Government on 9 May 2023. In a replying affidavit sworn by the County Executive Committee Member for Finance, the Respondents objected to mandamus on the grounds that the decree and Certificate of Order against the government were never served, that the gratuity was computed unilaterally without their involvement, and that they had not declined to settle but were handicapped by inadequate budgetary allocations. The court noted the applicant did not respond to the allegations of non-service, did not demonstrate the formula used to compute gratuity, filed submissions out of time without explanation, and took a lackadaisical approach. Holding that judicial review orders may be declined even where there is merit and that the applicant moved the Court prematurely, Radido Stephen, J struck out the Motion with costs to the Respondents on 22 November 2023, delivered virtually from Migori.

Key legal issues

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01

Whether mandamus could issue where the decree and Certificate of Order against the government were not served

Holding

The Motion was struck out because the applicant did not serve the decree, Certificate of Costs and Certificate of Order before invoking judicial review jurisdiction, and did not rebut that assertion

Reasoning

The Respondents averred that the decree and Certificate of Order against the government had not been served. The applicant did not respond to those assertions and offered no explanation for the omissions or for filing submissions out of time. The court held he approached the Court prematurely and that judicial review orders may be declined even on merit.

p. 2
02

Whether the applicant demonstrated the basis for computing gratuity

Holding

The applicant failed to demonstrate how and/or the formula used to compute the gratuity or whether the computations were made with reference to the Respondents

Reasoning

The Respondents contended the gratuity calculation was done unilaterally without their involvement. The court found the applicant did not demonstrate the formula used or that the Respondents were involved, and had taken a lackadaisical approach by not responding to the allegations of fact.

p. 2

Legal principles established

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  • Orders of judicial review may be declined even where there is merit.

Court orders

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  1. 1.The Motion is struck out
  2. 2.Costs to the Respondents
Jurisdiction invoked
Judicial review jurisdiction invoked by leave granted on 19 June 2023 to commence judicial review proceedings seeking mandamus to enforce a decree in Kisumu Cause No. 308 of 2014 (specific statutory provision not stated in judgment)

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 Maurice Otunga, County Executive Committee Member, Finance & another; Nyamori (Exparte Applicant) (Judicial Review Application E022 of 2023) [2023] KEELRC 2976 (KLR)", Case Analysis (2023). Judicial Review Motion (ex-parte applicant) arising from leave granted 19 June 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2976/eng@2023-11-22

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