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ELRCDismissedJudicial Review Application (Notice of Motion dated 18th March, 2025)· [2025] KEELRC 1473 (KLR)

Adul & 49 others v Clerk, County Assembly of Kisumu & 2 others (Judicial Review E035 of 2024) [2025] KEELRC 1473 (KLR)

Employment and Labour Relations Court
19 May 2025
JGJacob Gakeri
3,060 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You cannot force a Kenyan government body to pay court-awarded costs without first obtaining and serving a Certificate of Order under Section 21 of the Government Proceedings Act.

What this practically means

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Executive summary

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The ex parte applicant, an advocate acting for 49 former employees, moved the court by Notice of Motion dated 18th March, 2025 for an order of mandamus compelling the respondents to pay Kshs.338,783.00 being certified costs taxed on 24th April, 2024 in Kisumu ELRC Cause No. 382 'A' of 2018, with interest at 14% per annum. The respondents opposed the motion through a replying affidavit by Owen Eliud Ojuok, contending that the application failed to disclose the identities of the 49 applicants, lacked a verifying affidavit, and was premature and procedurally defective under Order 53 of the Civil Procedure Rules. The court traced the history of the matter, noting leave to apply for judicial review had been granted on 17th January, 2025 after dismissal of a preliminary objection. On the procedural objections, the court applied the Microsoft Corporation principle that rules of procedure are handmaidens, not mistresses, of justice, and held the respondents suffered no fundamental prejudice, as they were named in the statement of claim, were represented, and were both liable for the taxed costs. However, the court found the application failed on substance: Section 21 of the Government Proceedings Act, which applies to County Governments under Section 21(5), prescribes the exclusive mechanism for enforcing money decrees against government, requiring a Certificate of Order for costs Against the Government obtained and served before mandamus can issue. The applicants obtained only the Certificate of Taxation and never obtained or served the certificate under Section 21(1), either on the County Attorney or otherwise. Issuing mandamus would therefore be an exercise in futility. The Notice of Motion was dismissed with no orders as to costs.

Key legal issues

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01

Compliance with Section 21 of the Government Proceedings Act as condition precedent to mandamus

Holding

The application fails because the applicants neither obtained the Certificate of Order for costs Against the Government nor served it on the County Attorney

Reasoning

The court held that Section 21 is the sole mechanism for enforcing money decrees against government entities, with Section 21(4) shielding government property from execution. Mandamus compelling the Accounting Officer presupposes the certificate under Section 21(1) and (2) has been obtained and served. The applicants furnished only the Certificate of Taxation dated 2nd May, 2024, not the Certificate of Order, so issuing mandamus would be futile.

p. 6
02

Procedural deficiencies alleged by respondents (missing identities, verifying affidavit)

Holding

The procedural objections do not defeat the application; deviations not going to jurisdiction or causing fundamental prejudice should be excused

Reasoning

The respondents argued the motion was defective for omitting the identities of the 49 applicants and lacking a verifying affidavit. The court, relying on its leave ruling and the Microsoft Corporation principle, held that rules of procedure are handmaidens of justice, and that the respondents, named in the statement of claim and represented by counsel and liable for the taxed costs, suffered no fundamental prejudice.

p. 3

Legal principles established

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  • Enforcement of decrees for money or costs against the Government or County Government can only proceed on a Certificate of Order against the Government issued under Section 21(1) of the Government Proceedings Act and served on the Attorney-General/County Attorney; mandamus lies only where this condition precedent is met
  • The Government Proceedings Act predating the 2010 Constitution applies to both National and County Governments, including Section 21(5) on satisfaction of orders against County Governments

Court orders

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  1. 1.The Notice of Motion dated 18th March, 2025 is dismissed with no Orders as to costs
Jurisdiction invoked
Rule 7(1) and (2) of the Employment and Labour Relations Court (Procedure) Rules, 2024 and Order 53 Rules 3 and 4 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, "Adul & 49 others v Clerk, County Assembly of Kisumu & 2 others (Judicial Review E035 of 2024) [2025] KEELRC 1473 (KLR)", Case Analysis (2025). Judicial Review Application (Notice of Motion dated 18th March, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1473/eng@2025-05-19

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