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ELRCStruck OutJudicial Review (Notice of Motion dated 28th May 2025), ex-parte application for mandamus· [2025] KEELRC 3731 (KLR)

Republic v Machakos County Assembly Service Board & 2 others; Mutisya (Ex parte) (Judicial Review Application E001 of 2025) [2025] KEELRC 3731 (KLR)

Employment and Labour Relations Court
17 December 2025
JKJ. W. Keli
5,452 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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The court struck out a bid to force Machakos County Assembly officials to pay Kshs. 35 million decrees because the applicants skipped a mandatory certificate step.

What this practically means

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Executive summary

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The Ex-Parte Applicants, former ward office staff of the Machakos County Assembly, obtained judgments on liability and quantum in consolidated ELRC claims against the County Assembly Service Board, with decrees totalling Kshs. 35,231,259/-. Their advocate's demand letters went unsatisfied, and they moved the court by Notice of Motion dated 28th May 2025 seeking an order of mandamus directed at the 2nd and 3rd Respondents, as accounting officers of the Board, to settle the decrees with interest, a time limit for payment failing which a notice to show cause would issue, and costs. The Respondents opposed, explaining delays in learning of the judgment, the failure of prior counsel to surrender the client file, procurement processes for new counsel, budgetary constraints under the Public Finance Management Act, and pending review and extension-of-time applications; they argued mandamus is exceptional and could not override statutory discretion over timing and mode of payment. The court framed the sole issue as whether the application was merited. Reviewing section 21 of the Government Proceedings Act and the Supreme Court's advisory opinion in In re National Land Commission, which upheld Five Star Agencies, the court held that a certificate of order against the Government is a mandatory condition precedent to mandamus. Since no such certificate was obtained or annexed, the judicial review proceedings were premature. The application was struck out with costs to the Respondents.

Key legal issues

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01

Whether mandamus could issue to compel payment of decrees against the County Assembly Service Board without a certificate of order against the Government

Holding

The application fails because section 21 of the Government Proceedings Act requires, as a mandatory condition precedent, a certificate of order against the Government, which the Applicants did not obtain or annex; execution does not issue against the Government

Reasoning

The court reasoned that where the judgment debtor is a government entity, execution does not lie and the only procedure for satisfaction of decrees is under section 21 of the Government Proceedings Act, which obligates the Accounting Officer to pay upon issuance of a certificate stating the amount payable. Relying on the Supreme Court's advisory opinion in In re National Land Commission upholding Five Star Agencies, the court found the certificate mandatory. Since no certificate of order against the Government was annexed or evidenced, the judicial review proceedings were premature and had to be struck out.

p. 9

Legal principles established

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  • A certificate of order against the Government under section 21 of the Government Proceedings Act is a mandatory condition precedent to the issuance of an order of mandamus to compel payment of a decree against a government entity

Court orders

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  1. 1.The application for an order of mandamus is struck out for being premature
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • County Governments ActSection 12
  • Government Proceedings ActSection 21 (including 21(3) and 21(4))
  • Civil Procedure Rules, 2010Order 29 Rule 4
  • Public Finance Management Act
  • Public Procurement and Asset Disposal Act
  • Constitution of Kenya, 2012Articles 201, 226

Cases cited (7)

  • Republic Vs Jomo Kenyatta University Of Technology Ex-parte Elijah Kamau Mwangi
    [2021] eKLR
  • Republic v Kenya National Examinations Council exparte Gathenji and 9 Others
    [1997] eKLR
  • Republic v Principal Secretary, Ministry of Internal Security ex parte Schon Noorani & Another
    [2018] eKLR
  • In re National Land Commission (Reference E001 of 2024)
    [2025] KESC 12 (KLR) (21 March 2025) (Advisory Opinion)
  • Five Star Agencies Limited vs. National Land Commission and National Bank of Kenya, Nairobi
    Court of Appeal No. E290 of 2023
  • Apotex Inc. v Canada (Attorney General)
  • Dragan v Canada (Minister of Citizenship and Immigration)
Jurisdiction invoked
Judicial review jurisdiction of the High Court/ELRC in respect of orders of mandamus to compel satisfaction of decrees against a county government entity; Government Proceedings Act, section 21

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, "Republic v Machakos County Assembly Service Board & 2 others; Mutisya (Ex parte) (Judicial Review Application E001 of 2025) [2025] KEELRC 3731 (KLR)", Case Analysis (2025). Judicial Review (Notice of Motion dated 28th May 2025), ex-parte application for mandamus. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3731/eng@2025-12-17

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