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ELRCPartially AllowedKisumu High Court Judicial Review (Ex Parte) Application - Notice of Motion dated 12th September 2024· [2025] KEELRC 511 (KLR)

Ondieki v Kisii County Assembly Service Board & 2 others (Judicial Review E027 of 2024) [2025] KEELRC 511 (KLR)

High Court of Kenya (Constitutional and Judicial Review Division)
25 February 2025
JGJACOB GAKERI
2,521 words in judgment
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The bottom line

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The High Court ordered Kisii County Assembly's Board to compute gratuity within 21 days, then pay a former Speaker over Kshs 8.6 million or face a mandamus order.

What this practically means

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Executive summary

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The Ex Parte Applicant, former Speaker of the Kisii County Assembly, sought an order of mandamus under Order 53 Rule 1(2) of the Civil Procedure Rules compelling the Kisii County Assembly Service Board and the Clerk to pay Kshs.8,529,030.00, being the decretal sum awarded in Kisumu ELRC No. 87 of 2019 (Radido J., 15th February 2023), which comprised travel reimbursement, an NM-Practical allowance, 31% gratuity to be computed by the 1st respondent, and taxed costs. The respondents replied that the application was overtaken by events, asserting the decretal amount had been paid, including Kshs.3,078,961.65 under LAPFUND, and that mandamus had not crystallised. The court restated the principles governing mandamus, relying on the Nyamweya J. formulation in the JKUAT case, the Court of Appeal's decision in Gathengi, and Mativo and Githua JJ. on enforcement of decrees against Government through mandamus under Section 21 of the Government Proceedings Act. The court found the applicant had not demonstrated demand and refusal, had not itemised how the claimed figure was arrived at, and the gratuity component awaited computation by the 1st respondent. However, the LAPFUND payment was held to be pension, not gratuity, and the 1st respondent had shown no inclination to compute and pay gratuity as directed. The court directed the 1st respondent to compute and file the gratuity within 21 days, failing which mandamus issued compelling payment of the decretal sum with taxed costs. The application being only partially successful, there were no orders as to costs.

Key legal issues

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01

Whether mandamus should issue to compel payment of the decretal sum

Holding

Partially. The applicant failed to demonstrate demand and refusal and did not itemise how the claimed sum was arrived at; mandamus was granted against the 1st respondent but conditional on it first filing the gratuity computation within 21 days.

Reasoning

The court restated the principles governing mandamus: it enforces imperative public duties, requires a clear legal right, a demand and refusal, and no alternative remedy. The decree was served but the applicant did not demonstrate express or implied refusal after reasonable time. The applicant also failed to account for the sum of Kshs.8,529,030.00, particularly the gratuity component, which the ELRC directed the 1st respondent to compute. The 1st respondent had shown no inclination to comply with that direction.

p. 5
02

Whether the LAPFUND payment discharged the gratuity award

Holding

No; the payment of Kshs.3,078,961.65 was pension under a contributory scheme, not gratuity.

Reasoning

The respondents contended the sum of Kshs.3,078,961.65 had been paid under LAPFUND. The court examined the documents attached to the Replying Affidavit and found the payment was pension, LAPFUND operating a contributory pension scheme, and therefore distinct from the gratuity awarded pursuant to Gazette Notice No. 288 of 1st March 2013 providing 31% of basic salary for County State Officers.

p. 5

Legal principles established

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  • Decrees for payment of money against the Government can only be enforced by way of an order of mandamus compelling the accounting officer to pay, since Government property is immune from execution under Section 21(4) of the Government Proceedings Act
  • An order of mandamus compels performance of a public duty which is imperative, not optional or discretionary
  • A payment under LAPFUND, being a contributory pension scheme, is distinct from gratuity and does not satisfy a gratuity award

Court orders

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  1. 1.The 1st respondent shall compute the applicant's gratuity as directed by the court in its Judgment delivered on 15th February 2023 and file the same in court within 21 days from the date hereof for adoption, failing which
  2. 2.An order of mandamus be and is hereby issued to compel the 1st respondent to pay the ex parte Applicant the sum of Kshs.8,529,030.00 being the decretal sum awarded in Kisumu ELRC No. 87 of 2019 together with the taxed costs of Kshs.133,550.00
Jurisdiction invoked
Order 53 Rule 1(2) of the Civil Procedure Rules; leave for judicial review granted by the court on 5th August 2024

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, "Ondieki v Kisii County Assembly Service Board & 2 others (Judicial Review E027 of 2024) [2025] KEELRC 511 (KLR)", Case Analysis (2025). Kisumu High Court Judicial Review (Ex Parte) Application - Notice of Motion dated 12th September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/511/eng@2025-02-25

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