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ELRCAllowedJudicial Review Application arising from ELRC Claim No. 376 of 2014 (Notice of Motion dated May 4, 2024)· [2024] KEELRC 2437 (KLR)

Boro & another v Nairobi City County (Judicial Review E015 of 2024) [2024] KEELRC 2437 (KLR)

Employment and Labour Relations Court
30 September 2024
AMAnna Ngibuini Mwaure
1,059 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 applicants, Charles Gichia Boro and Jones Kimuyu Ngungah, obtained judgment on July 5, 2019 in ELRC Nairobi Claim No. 376 of 2014 against Nairobi City County, awarding them Kshs 459,665 and Kshs 423,120.40 respectively, with taxed costs of Kshs 127,150. A decree was issued on December 19, 2019 and a certificate of order on March 22, 2024, but the respondent never paid and never appealed. By notice of motion dated May 4, 2024, the applicants sought mandamus to compel the respondent to satisfy the total of Kshs 1,508,245.97 plus interest and costs. The respondent, through its County Chief Officer Finance, opposed the application, asserting strict budget constraints and that the sums were not factored into the current financial year budget, while professing willingness to settle once budgeted. The court held that the respondent's budget-based defence was untenable; blanket promises to pay when funds are available cannot be taken seriously, and refusal of mandamus would leave the applicants with a mere paper judgment. Relying on Kisya Investments Ltd v Attorney General and Republic v Attorney General ex parte James Alfred Koroso, the court found no alternative remedy. On September 30, 2024 it granted mandamus compelling the respondent to comply with the decree and certificate of order and pay Kshs 1,508,245.97, being the decretal sum, interest and costs of the suit, and awarded the applicants the costs of the application.

Key legal issues

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01

Entitlement to the fruit of judgment

Holding

The applicants, having obtained an unappealed and unvaried judgment and certificate of order, deserve mandamus to enforce payment.

Reasoning

The court noted judgment was delivered on July 5, 2019 awarding the applicants sums plus taxed costs, the total due being Kshs 1,508,245.97. The respondent never appealed nor sought setting aside, and never paid. Rejecting the budget-constraint excuse, the court held that refusing mandamus would leave the applicants with a mere paper judgment and deny them the fruit of their judgment.

p. 2
02

Budget constraints as a defence

Holding

Budgetary constraints and absence of provision in the approved budget do not excuse non-payment of a decree.

Reasoning

The respondent's Chief Officer Finance deponed that the sums were not provided for in the current financial year budget. The court held this defence untenable, observing the case was old (2014) and the respondent gave no concrete settlement proposals. Blanket promises to pay when funds are available cannot be taken seriously by the court.

p. 2

Legal principles established

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  • A judgment debtor, including a county government, cannot rely on budgetary constraints to avoid satisfying a decree; funds must be budgeted for and vague promises are unacceptable.
  • Mandamus lies where no other remedy is available to enforce a decree against a public body.

Court orders

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  1. 1.An order of mandamus compelling the respondent to comply with the decree and certificate of order issued on December 19, 2019 and March 22, 2024 in ELRC Nairobi Claim No. 376 of 2014
  2. 2.Payment to the applicants of Kshs 1,508,245.97 being the decretal sum, interest and costs of the suit
  3. 3.Costs of the application awarded to the applicants

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSection 1B

Cases cited (2)

  • Kisya Investments Ltd v Attorney General & Another
    [2005] eKLR
  • Republic v Attorney General & Another exparte James Alfred Koroso
    [2013] eKLR
Jurisdiction invoked
Judicial review jurisdiction of the ELRC to enforce its own decree by order of mandamus

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, "Boro & another v Nairobi City County (Judicial Review E015 of 2024) [2024] KEELRC 2437 (KLR)", Case Analysis (2024). Judicial Review Application arising from ELRC Claim No. 376 of 2014 (Notice of Motion dated May 4, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2437/eng@2024-09-30

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