Muga v Migori County Government & another

sum claimed. Instead, they assert that the Court merely adopted the Public Service Commission's decision granting the Ex Parte Applicant one month's salary in lieu of notice, the equivalent of four months' salary as compensation for unfair termination, and service gratuity for the period served in accordance with the appointment letter dated 19th June 2019, none of which was quantied. Additionally, they contend that the Ex Parte Applicant has not demonstrated compliance with section 21 of the Government Proceedings Act by obtaining and serving a Certicate of Order against the Government. They therefore urge the Court to dismiss the application for being incompetent and an abuse of the court process. 4. The application was canvassed by way of written submissions. Ex-Parte Applicant’s Submissions 5. The Ex-Parte Applicant identies the following issues for determination: a. Whether the Applicant's application is competent notwithstanding the objections raised as to its form and intitulement; b. Whether the County Secretary, County Government of Migori is a proper Respondent against whom an order of mandamus may issue; c. Whether the Judgment and Decree in ELRC Miscellaneous Application No. E113 of 2024, adopting the decision of the Public Service Commission, created an enforceable legal obligation capable of being enforced through judicial review proceedings; d. Whether the Applicant has established the legal threshold for the grant of leave to apply for an order of mandamus. 6. On the competence of the application the the Ex-Parte Applicant submits that the Respondents’ reliance on Farmers Bus Service & others v Transport Licensing Appeal Tribunal [1959] EA 779, to argue that the application has been wrongly intituled is erroneous. Relying on Article 159(2)(d) of the Constitution, she asserts that procedural requirements should not override the Court's constitutional obligation to determine disputes on their merits. She therefore urges the court to consider the substance of her grievance rather than shut out her meritorious enforcement claim on account of a technicality. In any case she argues that the Respondents have fully participated in the proceedings and led responses thereby demonstrating an understanding their obligation to pay. 7. On the second issue, the Ex-parte Applicant submits that the County Secretary is the proper Respondent against whom an order of mandamus may issue. She points out that the Public Service Commission’s decision was adopted against the County Secretary in ELRC Miscellaneous Application No. E113 of 2024, hence the County Secretary cannot deny being a proper party to the enforcement proceedings. The Ex-parte applicant relies on Section 44 of the County Governments Act, for the propositions that the County Secretary, as the head of the county public service and chief administrative ocer, bears the statutory responsibility of ensuring satisfaction of lawful decrees. She cites Republic v Kenya National Examinations Council ex parte Gathenji & others [1997] eKLR, where the Court of Appeal held that mandamus issues to compel the performance of a statutory public duty that has not been performed. Additional reliance is also placed on Republic v County Secretary, Nairobi City County & another ex parte Wachira Nderitu Ngugi & Co. Advocates [2016] eKLR, where the Court held that in instances in which a decree has been issued against a County Government mandamus properly lies against the County Secretary and other responsible public ocials charged with ensuring compliance with court decrees. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2542/eng@2026-09-24 2

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8. On the third issue the Ex-parte Applicant submits, that once this court adopted the PSC’s decision it ceased to be a mere administrative determination and acquired the force and eect of a judgment of a competent court. She asserts that the Respondent’s reservation on the computation of the award is not a defence to the existence of the decree and is not a basis for refusal of leave. She reiterates that mandamus exists to compel satisfaction of an existing decree citing Republic v Kenya National Examinations Council ex parte Gathenji & others [1997] eKLR. 9. As to whether she has met the threshold for grant of leave, the Ex-parte Applicant submits that she has. She points to the fact that, a valid judgment exists, a decree was extracted and served on the Respondents, the Respondents have persistently failed to comply despite knowledge of the decree, and there is no alternative remedy since execution cannot issue against Government entities. She maintains that at the leave stage the court is only required to determine whether an arguable case has been disclosed and not to delve into the merits of the intended judicial review application. He relies on Republic v County Council of Kwale & another ex parte Kondo & 57 others, [1998] KEHC 2, where the Court held that leave serves as a lter against frivolous claims and should be granted where an arguable case exists. She also cites Mirugi Kariuki v Attorney General [1990] KLR 8, in which the Court held that leave should ordinarily issue where a prima facie case worthy of judicial consideration is disclosed. Additional reliance is placed on Republic v Permanent Secretary, Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, where the Court held that mandamus is the only eective remedy available to a decree holder where Government fails to satisfy a judgment, Republic v Attorney General & another ex parte James Alfred Koroso [2013] eKLR, in which the Court observed that Government should not rely on statutory immunity from execution to evade compliance with lawful court orders, and Republic v County Secretary, Nairobi City County & another ex parte Wachira Nderitu Ngugi & Co. Advocates [2016] eKLR, which armed that mandamus is the appropriate mechanism for enforcing decrees against County Governments. 10. Turning to the authorities relied upon by the Respondents, the Ex-parte Applicant submits that they do not advance their cause. As concerns Farmers Bus Service & others v Transport Licensing Appeal Tribunal [1959] EA 779, she contends that it was decided before the promulgation of the Constitution, 2010 and should not be applied in isolation from the constitutional imperative favouring substantive justice. As for Five Star Agencies Ltd v National Land Commission & another [2024] eKLR, the Exparte Applicant submits that it merely emphasizes compliance with section 21 of the Government Proceedings Act and does not authorize public bodies to ignore subsisting court judgments. She asserts that any issues concerning compliance with the statutory requirements or computation of the decretal amount are matters for the substantive motion and do not negate the existence of an arguable case at the leave stage. In view of the foregoing the Ex-parte Applicant urges the Court to allow the application. Respondents’ Submissions 11. From the outset the Respondents submit the application is premature and legally untenable because it seeks enforcement of unliquidated and unascertained amounts. They assert that the Public Service Commission did not quantify the awards it made, neither is the Applicant’s monthly salary nor the contents of the appointment letter before court. Furthermore, they submit that the decree did not award costs as alluded to by the Applicant. In view of the foregoing, they emphasize that the lump sum of Kshs. 1,683,360/-, interest at 14% per annum and Kshs 200,000/- costs have no evidential basis and cannot be recovered through judicial review proceedings. 12. The Respondents further submit that the Chamber Summons is incompetent because it has been wrongly intituled. They point to the fact that the proceedings were commenced in the name of the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2542/eng@2026-09-24 3

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Republic at the leave stage instead of the Applicant’s own name. In support of this proposition, they rely on Farmers Bus Service & others v Transport Licensing Appeal Tribunal [1959] EA 779, as approved in Republic v Minister for Finance & Commissioner of Insurance ex parte Charles Lutta Kasamani t/a Kassamani & Company Advocates, [2006] eKLR, where the Court held that proceedings should only be intituled in the name of the Republic after leave has been granted and the substantive Notice of Motion is led. 13. Concerning the parties sued, the Respondents submit that the 1st and 2nd Respondents have been improperly joined because the decree was issued solely against the 3rd Respondent. they assert that neither the County Secretary nor the Governor owes the Applicant any statutory duty capable of enforcement by an order of mandamus. In support of this argument, they rely on Republic v Kenya National Examinations Council ex parte Georey Gathenji Njoroge & 9 others [1997] eKLR, where the Court held that mandamus issues only to compel the performance of a public duty imposed by law upon a person or body. Additionally, the Respondents submit that the application oends the provisions of the Public Finance Management Act, 2012 because none of the named Respondents is the accounting ocer responsible for payment of public funds. They contend that under section 149(1) of the Act, any order compelling payment from public funds must be directed against the relevant accounting ocer and not against political or administrative oce holders. They also maintain that the Applicant has failed to comply with section 21 of the Government Proceedings Act, which requires a successful litigant to obtain and serve a Certicate of Order against the Government before seeking enforcement through mandamus. They rely on Five Star Agencies-Ro Limited v National Land Commission & another, Civil Appeal No. E290 of 2023 [2024] eKLR, particularly paragraph 95, where the Court of Appeal armed that compliance with section 21 is a mandatory condition precedent to the grant of an order of mandamus against a public body. Consequently, they urge the Court to dismiss the application due to the fact that it is anchored on wrongful ctitious and misleading statements of fact. Disposition 14. The Applicant seeks leave to commence judicial review proceedings for an order of mandamus to compel the Respondents to satisfy the decree arising from Kisumu ELRC Misc. Application No. E113 of 2024 wherein this Court adopted the decision of the Public Service Commission in favour of the Applicant. The sum due is Kshs. 1,683,360/- together with interest at court rates till payment in full. Costs claimed are Kshs. 200,000/-. 15. Question for the Court is whether there is basis for the grant of the order of mandamus. An order of mandamus may be sought in instances where there is non-compliance with an order or edict of court. In the case of Republic v Permanent Secretary, Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, the Court held that mandamus is the only eective remedy available to a decree holder where Government fails to satisfy a judgment. 16. The decision of the Public Service Board was adopted as an order of the Court and there has been demonstrably no eort by the Respondents to give eect to the decision subject of the motion. The writ of mandamus issues where a public ocial declines to act as required to in law. I am in total agreement and therefore hold that the application for leave to apply for orders of mandamus lies. Application granted with costs to the Applicant. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF SEPTEMBER 2026 NZIOKI WA MAKAU, MCIARB. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2542/eng@2026-09-24 4

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JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2542/eng@2026-09-24 5

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