Republic v Director of Finance, Teachers Service Commission; Mutiso (Ex parte Applicant) (Judicial Review Application E029 of 2025) [2025] KEELRC 2254 (KLR)
The bottom line
#A former TSC teacher lost his bid to force payment of a court award because he failed to cooperate with opening the account for the deposit.
What this practically means
#Executive summary
#Key legal issues
#Proper party for mandamus against the TSC
The applicant sued the proper party; the Director of Finance is the Commission's officer vested with the duty to process and cause payment of the decretal sum
The Court accepted the applicant's submission that the Director in charge of Finance is the officer mandated to process payments on behalf of the TSC. It found the applicant had sued the proper party in terms of section 12 of the Employment and Labour Relations Act and the definition of 'employer' in section 2 of the Employment Act, notwithstanding the respondent's invocation of Article 253 of the Constitution and section 22 of the TSC Act on corporate personality and exemption from personal liability.
Statutory duty to pay under a certificate of order against the government
The certificate was served and the duty to pay had fallen due under section 21(3) of the Government Proceedings Act, without requiring National Treasury approval
The Court found it undisputed that section 21(3) of the Government Proceedings Act imposes a statutory duty on the accounting officer to pay the sums specified in the certificate to the person entitled, together with any lawful interest, and that the section does not make payment conditional on Treasury approval. The certificate having been served, the duty to pay had fallen due. However, this finding alone did not result in mandamus because of the bar on the facts.
Bar to mandamus based on the applicant's failure to cooperate with the conditional stay order
Mandamus was refused because the applicant did not rebut the respondent's evidence that the failure to deposit the decretal sum was occasioned by the applicant's failure to process the relevant accounts for the deposit
The Court of Appeal had granted a conditional stay on 03.11.2023 requiring deposit of Kshs.2,517,845/- in a joint interest-earning account. The respondent averred that it forwarded account-opening details but the applicant's advocates declined to complete and return the executed forms. The Court found the applicant had not rebutted this account and held that his failure to cooperate was a valid bar to mandamus, leaving parties at liberty to comply with the conditional stay or settle amicably.
Legal principles established
#- Section 21(3) of the Government Proceedings Act imposes a statutory duty on the accounting officer concerned to pay sums specified in a certificate of order to the person entitled, and does not condition payment on approval of the National Treasury
- An applicant's own failure to cooperate in compliance with a conditional stay order is a valid bar to the grant of mandamus
Court orders
#- 1.The application is dismissed
- 2.Each party to bear own costs of the application
- 3.Parties at liberty to take steps to comply with the conditional stay order and related deposit or amicable settlement of the decretal sum
- Jurisdiction invoked
- Articles 10, 22, 23, 47, 48 and 237 of the Constitution of Kenya; Sections 4 and 11 of the Fair Administrative Actions Act, 2015; Sections 8 and 9 of the Law Reform Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Director of Finance, Teachers Service Commission; Mutiso (Ex parte Applicant) (Judicial Review Application E029 of 2025) [2025] KEELRC 2254 (KLR)", Case Analysis (2025). Judicial Review Application arising from Notice of Motion dated 23.05.2025 (re: Nairobi ELRC Cause No. 570 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2254/eng@2025-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.