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ELRCAllowedJudicial Review Application pursuant to Notice of Motion dated 26th September, 2023 (Kericho ELRC)· [2024] KEELRC 989 (KLR)

Republic v Governor of Kericho County & another; Ng’eno (Exparte) (Judicial Review Application E003 of 2023) [2024] KEELRC 989 (KLR)

Employment and Labour Relations Court of Kenya
2 May 2024
HWHellen Wasilwa
3,905 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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Kericho court ordered the county government to pay KES 10.5 million awarded to a successful litigant, confirming mandamus compels payment of county debts.

What this practically means

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Executive summary

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The Ex parte Applicant, the successful decree holder in Kericho ELRC Petition No. 2 of 2020 where judgment was entered on 7th July 2021 for unfair removal from office, sought an order of mandamus under Order 53 rule 1 of the Civil Procedure Rules read with Rule 7 of the ELRC (Procedure) Rules, 2016, compelling the Respondents to pay Kshs. 8,394,500 in damages, Kshs. 1,678,900 in accrued interest and Kshs. 491,971 in certified costs, plus the costs of the application. The Respondents' appeal-stay application in the Court of Appeal at Nakuru had been dismissed on 16th December 2022. By consent, a certificate of order against the County Government was issued in May 2022 (Justice David Nderitu) and certificates for the decretal sum and taxed costs were issued by the Deputy Registrar on 21st June 2023 and served on the County Attorney by G4S courier on 29th June 2023. The Respondents, through the County Secretary's replying affidavit, opposed the application, arguing the Applicant failed to comply with section 21(1) and (2) of the Government Proceedings Act and Order 29 of the Civil Procedure Rules, did not serve the Attorney General, and that any mandamus should be directed at the accounting officer rather than a blanket order. The court found the Respondents had knowledge of the claim, having consented to the extraction of the certificate, and that any deviation from the prescribed procedure could be cured under Article 159(2)(d) of the Constitution and section 72 of the Interpretation and General Provisions Act. The court allowed the application in terms of prayers 1 and 2, issuing mandamus and awarding costs to the ex parte Applicant.

Key legal issues

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01

Compliance with section 21(1) and (2) of the Government Proceedings Act and Order 29 of the Civil Procedure Rules as a condition precedent to mandamus

Holding

The court held that although the Respondents alleged non-compliance with the prescribed procedure, the Respondents had knowledge of the claim and consented to the extraction of the certificate against them, satisfying the purpose of the statutory requirement

Reasoning

The court noted there was no dispute that judgment was entered in the underlying petition. A certificate against the Respondents was issued by consent by Justice Nderitu in May 2022, and certificates directing the County Secretary to pay the decretal sum and costs were issued by the Deputy Registrar on 21st June 2023 and served via G4S courier on the County Attorney. Because the Respondents participated in the consent and had knowledge, any deviation from the prescribed form was a procedural lapse curable under Article 159 and section 72 of the Interpretation and General Provisions Act.

p. 8
02

Entitlement to mandamus to enforce a decree against a county government

Holding

Mandamus was warranted to compel the Respondents to discharge their public duty to pay the decretal sum, interest and costs, there being no other remedy available to the decree holder

Reasoning

Relying on the Gathenji principles and the Koroso decision, the court accepted that the Applicant, being barred from executing against the Government, has no option apart from mandamus to realise the fruits of his judgment. The Respondents had wrongly abdicated their public duty by refusing to pay despite service of the certificate of order. The application was accordingly allowed in terms of prayers 1 and 2.

p. 8

Legal principles established

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  • A successful litigant's right to enjoy the fruits of judgment must not be thwarted, and courts should adopt interpretations favouring enforcement of accrued rights
  • Mandamus lies to enforce a public duty where there is a specific legal right and no other specific, convenient and effectual remedy to enforce it

Court orders

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  1. 1.An order of mandamus directed to the respondents to pay the ex parte applicant Kshs. 8,394,500 being damages awarded, Kshs. 1,678,900 being accrued interest, and Kshs. 491,971 being certified costs from Kericho ELRC Petition No. 2 of 2020
  2. 2.Costs of the application awarded to the ex parte applicant (application allowed in terms of prayer 1 and 2)
Jurisdiction invoked
Order 53 rule 1 of the Civil Procedure Rules as read with Rule 7 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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 Governor of Kericho County & another; Ng’eno (Exparte) (Judicial Review Application E003 of 2023) [2024] KEELRC 989 (KLR)", Case Analysis (2024). Judicial Review Application pursuant to Notice of Motion dated 26th September, 2023 (Kericho ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/989/eng@2024-05-02

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