Republic v Commissioner General of Prisons & another; Cheruiyot (Exparte) (Judicial Review E014 of 2022) [2023] KEELRC 261 (KLR) (8 February 2023) (Ruling) Neutral citation: [2023] KEELRC 261 (KLR) REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU JUDICIAL REVIEW E014 OF 2022 S RADIDO, J FEBRUARY 8, 2023 IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY WAY OF AN ORDER OF MANDAMUS AND IN THE MATTER OF ARTICLES 41, 73, 162, 233 AND 234 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTIONS 45 AND 49 OF THE EMPLOYMENT ACT 2007 AND IN THE MATTER OF SECTIONS 7, 8 AND 9 OF THE FAIR ADMINISTRATIVE ACTION ACT 2015 AND IN THE MATTER OF SECTIONS 20 AND 21 OF THE GOVERNMENT PROCEEDINGS ACT AND IN THE MATTER OF ORDER 29 OF THE CIVIL https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/261/eng@2023-02-08 1
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PROCEDURE RULES AND 1|4PAGEKISUMUJRNO.E014OF 2022 IN THE MATTER OF ORDERS 53(1) OF THE CIVIL PROCEDURE RULES AND IN THE MATTER OF EXECUTION OF A DECREE OF KSHS 546,000/BETWEEN REPUBLIC ................................................................................................. APPLICANT AND COMMISSIONER GENERAL OF PRISONS .............................. 1ST RESPONDENT PUBLIC SERVICE COMMISSION .............................................. 2ND RESPONDENT AND MUSA KIPRONO CHERUIYOT ............................................................... EX PARTE RULING 1. The Court granted leave on November 22, 2022 to Musa Kiprono Cheruiyot (ex-parte applicant) to commence judicial review proceedings against the Commissioner General of Prisons and the Public Service Commission. 2. The ex-parte applicant filed the Motion on November 25, 2022 and the Court gave directions on December 13, 2022, (Ms Essendi from the ofice of the Honourable Attorney General was present when the directions were given). 3. Despite the directions, the Respondents’ responses were not on record by the agreed timeline of January 10, 2023. 4. The ex-parte applicant filed his submissions on January 23, 2023. 5. It is not in dispute that the Court entered judgment for the ex-parte applicant for Kshs 546,000/- in Kisumu Cause No 330 of 2016, Musa Kiprono Cheruiyot v Commissioner General of Prisons & Ar. 6. It is also not in dispute that the ex-parte applicant obtained a decree, certificate of costs and certificate of order against the government. 7. The Respondents have not filed any response to the Motion to explain why they have failed to comply with the decree and certificates. 8. The Court, therefore decrees that: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/261/eng@2023-02-08 2
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i. An order of mandamus is hereby issued against the 1st Respondent’s Accounting Oficer compelling him/her to pay the ex-parte applicant the decretal sum of Kshs 546,000/- together with interest. ii. The ex-parte applicant to have costs of the Motion. DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 8TH DAY OF FEBRUARY 2023. RADIDO STEPHEN, MCIARB JUDGE APPEARANCES For ex-parte applicant Wachira Wanjiru & Co. Advocates Respondents did not formally come on record Court Assistant Chrispo Aura https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/261/eng@2023-02-08 3
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