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ELRCPartially AllowedMisc Application No E001 of 2024· [2025] KEELRC 1121 (KLR)

Kenya Union of Clinical Officers & 76 others v County Secretary, County Government of Vihiga & another (Miscellaneous Application E001 of 2024) [2025] KEELRC 1121 (KLR)

Employment and Labour Relations Court
3 April 2025
2,452 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 ex parte applicants, clinical officers who obtained a judgment on 26th May 2023 in Bungoma ELRC No. 32 of 2021 declaring them permanent employees of the County Government of Vihiga and awarding salary arrears and interest, moved the court by notice of motion dated 14th October 2024 seeking an order of mandamus compelling the respondents, as accounting officers, to pay Kshs.128,653,594.752 (salary arrears and taxed costs) plus interest at 12% per annum from 26th May 2023. The debt had been fixed at over Kshs.106 million in a ruling of 30th November 2023, costs taxed at Kshs.5,027,340, and a certificate of order against the government issued and served in September 2024, but remained unpaid. Because execution cannot lawfully issue against a county government, mandamus under Section 21 of the Government Proceedings Act was invoked. The respondents admitted the facts but urged the court to hold its ruling pending a Court of Appeal application for stay of execution and leave to appeal out of time (Kisumu Civil Application No. E243 of 2024). The court found no stay of execution was in force, no evidence supported the alleged ruling date, and no application had been made to arrest the ruling. The application was allowed: mandamus was issued compelling payment of the certified sum plus interest at court rates from 26th May 2023, with 60 days to settle or make acceptable proposals, and costs were awarded to the applicants.

Key legal issues

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01

Whether mandamus lies to compel the respondents as accounting officers to pay a money decree against the County Government of Vihiga

Holding

Mandamus was granted; execution cannot lie against a county government, but the accounting officers can be compelled to pay the decretal sum

Reasoning

The essential facts were admitted: judgment of 26th May 2023, a ruling of 30th November 2023 fixing the debt at over Kshs.106 million, taxed costs, and a certificate of order against the government. Since execution cannot lawfully issue against a county government, mandamus under Section 21 of the Government Proceedings Act was the proper remedy to compel the accounting officers to settle the decree. The pending Court of Appeal application did not bar relief.

p. 5
02

Whether the pendency of an application for stay of execution and leave to appeal out of time in the Court of Appeal should stay the present ruling

Holding

No; no stay of execution was in force and the mere pendency of the application was not a reason to arrest the ruling

Reasoning

The court found no evidence of the alleged ruling date. Even assuming it existed, no application had been made to arrest the ruling, and the alleged pending ruling was not a ground for failing to settle the decree or offer security. Any future stay granted by the Court of Appeal would bind this court and halt execution accordingly.

p. 7

Legal principles established

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  • Once a judgment is passed and a decree drawn, a decree-holder has a constitutional and legal right to execute it immediately
  • A judgment-debtor's financial position is not a defence or bar to settling a decree, only a mitigating factor on terms and conditions
  • A pending application for stay or leave to appeal does not excuse failure to settle a decree or offer security

Court orders

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  1. 1.An order of mandamus issued compelling the respondents to pay the ex parte applicants Kshs128,653,594.752 (salary arrears plus costs) plus interest at court rates from 26th May, 2023 till payment in full
  2. 2.The respondents to settle the amounts due or make acceptable proposals to the applicants within 60 days of the ruling
  3. 3.Costs of the application to the applicants

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 48 & 165
  • Law Reform ActSections 8 & 9
  • Fair Administrative Actions ActSections 7 & 11
  • Civil Procedure RulesOrder 53
  • Government Proceedings ActSections 21(1) & (3)
  • Employment ActSection 19
  • County Governments Act, 2012Section 59

Cases cited (7)

  • Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza
    [2012] eKLR
  • Republic v Attorney General & Another ex parte James Alfred Koroso
    [2013] eKLR
  • Republic v County Secretary, County Government of Kirinyaga & Executive Committee Member for Finance
    [2020] eKLR
  • Republic v Principal Secretary, Ministry of Defence ex parte George Kariuki Waithaka
    (2018)/(2019) eKLR
  • Republic v Communication Authority of Kenya & Another ex parte Lega Advice Centre aka Kituo Cha Sheria
    [2015] eKLR
  • Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others
    [2014] eKLR
  • Kenya Union of Clinical Officers & Others v County Government of Vihiga
    Bungoma ELRC No. 32 of 2021
Jurisdiction invoked
Articles 48 & 165 of the Constitution; Sections 8 & 9 of the Law Reform Act; Sections 7 & 11 of the Fair Administrative Actions Act; Order 53 of the Civil Procedure Rules

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, "Kenya Union of Clinical Officers & 76 others v County Secretary, County Government of Vihiga & another (Miscellaneous Application E001 of 2024) [2025] KEELRC 1121 (KLR)", Case Analysis (2025). Misc Application No E001 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1121/eng@2025-04-03

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