Republic v County Government of Nakuru & Nakuru County Public Service Board (Ex-Parte Rebeccah Bitengo Achuti & 28 Others)

JOB MOMANYI OMWOYO JOB NJAU NJENGA BONY SARUNI LINDA CHELANG’AT ROTICH MONICAH MUTHONI MWANGI EUNICE NJERI IRUNGU JAMES MUTAHI NGIGI PETER KIMANI NDICHU THOMAS KEAGOS SOLOMON MWANGI KIMANI SAMSON MAINA KIMANI………………………..…… SUBJECTS RULING Introduction 1. The Subjects/Applicants filed a Notice of Motion dated 7th May 2026 seeking orders that: 1. This Honourable Court do hereby grant the Subjects/Applicants an order of MANDAMUS directing/compelling the Respondents to pay each of the Subjects/Applicants the following: i. 1 month salary in lieu of notice ii. Gratuity at 31% as per their contract of employment iii. Compensation equivalent to 3 months’ salary for unfair termination. iv. Interest at 6% per annum on the above v. Costs of suit. Being compensation awarded by the court vide a judgment delivered on 31st October NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 2 | PAGE

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2023 and subsequent decree dated 26th November 2025, costs which were assessed and certified by the Deputy Registrar at Kshs.435,087/= in Nakuru ELRC No. E039 of 2022: Rebeccah Bitengo Achuti & 28 others vs County Government of Nakuru & Nakuru County Public Service Board and the Certificate of Order against the Government obtained thereafter. 2. The costs of this application be borne by the Respondents. 2. The application is brought under Order 51 Rule 1, Order 53 Rule of the Civil Procedure Rules, section 8 and 9 of the Law Reform Act, section 3A of the Civil Procedure Act and all other enabling provisions of the law. Subjects/Applicants’ supporting affidavit 3. The application is supported by an affidavit sworn by one of the subjects, Rebeccah Bitengo Achuti, dated contemporaneously with the application. 4. The Subjects/Applicants aver that leave to institute Judicial Review proceedings against the Respondents was duly granted on 30th April 2026 by the Honourable Justice James Rika. 5. The Subjects/Applicants aver that they were formerly employees of the Respondents until 7th October 2022 NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 3 | PAGE

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when their contracts were unfairly terminated, notwithstanding several breaches committed by the Respondents. 6. Consequently, the Subjects/Applicants aver that they instituted Nakuru ELRC No. E039 of 2022: Rebeccah Bitengo Achuti & 28 Others v County Government of Nakuru & Nakuru County Public Service Board, wherein judgment was delivered on 31st October 2023 by the Honourable Justice Hellen Wasilwa awarding one month’s salary in lieu of notice, gratuity at 31% under the contracts of employment, and compensation equivalent to three months’ salary for unfair termination. 7. Subsequently, the Subjects/Applicants aver that computations were adopted as the Order of the Court issued on 6th March 2024. She further narrates that costs were taxed at Kshs. 435,087/= and interest at 6% per annum was granted on 30th July 2025, followed by issuance of a Certificate of Order Against the Government on 25th March 2026. 8. Despite service upon the County Attorney and the Honourable Attorney General, the Subjects/Applicants aver that the decretal sum remains unsatisfied, the stay order having lapsed upon non-compliance. NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 4 | PAGE

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9. Being barred from execution against the Government, the Subjects/Applicants pray for an order of mandamus under Section 21(3) of the Government Proceedings Act (Cap 40) to compel settlement of the judgment debt, which remains outstanding three years later. Respondent’s grounds of opposition and replying affidavit 10.The Respondent opposed the application vide grounds of opposition dated 26th May 2026 and replying affidavit sworn by Francis Kihoro Wagachira, the Respondent’s Principal Legal Officer, dated even date as the replying affidavit. 11.In the grounds of opposition, the Respondents aver that the application is incompetent, misconceived, and fatally defective for failure to enjoin the relevant accounting officers vested with the statutory mandate to authorize, process, and effect disbursement of county funds; and in the absence of such officers, the orders sought are incapable of practical enforcement under the Public Finance Management Act, rendering the application premature, misconceived, and an abuse of the court process. NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 5 | PAGE

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12.In the replying affidavit, the Respondents aver that although they are aware of the judgment delivered in Nakuru ELRC No. E039 of 2022, the Subjects/Applicants have not demonstrated any refusal or deliberate failure by the Respondents to settle the decretal amount. 13. The Respondents further aver that the Respondents, being public entities established under the Constitution, are bound by budgetary allocation, approval processes, and availability of funds under the Public Finance Management Act. The Respondents add that the verification, approval, and settlement of decretal sums involving public funds are ongoing and subject to internal government procedures. 14. The Respondents contend that the Subjects/Applicants have not shown evidence of serving a demand letter, decree, certificate of order against the Government, or certificate of costs upon the Respondents. 15. The Respondents emphasize that an order of mandamus is discretionary and ought not to issue where the Respondents are taking steps toward compliance within the confines of the law and available public finances. NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 6 | PAGE

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16. The Respondents conclude that the application is premature, misconceived, and an abuse of the court process, and pray that it be dismissed with costs. 17. Parties canvassed the application by way of written submissions. Subjects/Applicant’s submissions 18. The Subjects/Applicants submitted that their judicial review application is competent and properly before the Court, despite objections raised by the Respondents. The Subjects/Applicants argue that non-joinder of accounting officers is not fatal, citing the cases of Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County Ex- Parte David Mugo Mwangi [2017] KEHC 7721 (KLR), Republic v Attorney General & another Ex parte Orbit Chemicals Limited [2017] KEHC 7800 (KLR) where the court cited the case of Consolata Kihara & 241 Others v Director Kenya, Trypanosomiasis Research Institute [2003] KEHC 940 (KLR), which held that mis-joinder does not invalidate judicial review proceedings. The Subjects/Applicants emphasize that Article 159(2)(d) of the Constitution cures procedural defects, and that leave to file the NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 7 | PAGE

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application was already granted, referencing Republic v Communications Commission of Kenya (As successor to Managing Director Kenya Posts & Telecommunications Corporation and Kenya Posts & Telecommunications); East Africa Television Network Limited (Ex parte Applicant) [2001] KECA 353 (KLR) and The Matter of the Minister for Agriculture & The Tea Act(Cap 343 Laws of Kenya) and The Tea (Elections) Regulations 2000, Civil Appeal No 144 of 2000(unreported). 19.On payment, the Subjects/Applicants relied on Republic v Permanent Secretary Ministry of State for Provincial Administration and Internal Security & Another [2014] KEHC 7282 (KLR), which held that section 21(3) of the Government Proceedings Act imposes a statutory duty to pay once a certificate of order is served, regardless of budgetary allocation. The Subjects/Applicants further note that the decree, certificate of order, and costs were duly served and acknowledged, constituting a demand for payment. Finally, the Subjects/Applicants invoke Republic v Attorney General & 2 Others Ex-Parte Joseph NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 8 | PAGE

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Ombaso Masese [2014] KEHC 5040 (KLR) and Republic v Attorney General & Another Ex Parte James Alfred Koroso [2013] KEHC 90 (KLR) to argue that mandamus is the only remedy available since execution against government is barred, stressing that denial of payment violates Article 48 on access to justice and Article 129 of the Constitution on accountability of public officers. 20. The Subjects/Applicants urge the Court to grant mandamus to enforce the unchallenged judgment and end prolonged litigation. Respondents’ submissions 21. The Respondents submitted that the application is fatally defective as it seeks to compel payment of public funds through an order of mandamus against parties lacking statutory mandate to authorize county expenditure, rendering the orders incapable of enforcement. The Respondents rely on sections 148(1) and 148 (2) and 149 of the Public Finance Management Act, which designate accounting officers as responsible for managing, authorizing, and accounting for county finances, and on Republic v Attorney General & Another ex parte James Alfred Koroso(Supra), where Odunga J. observed that mandamus compels the NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 9 | PAGE

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officer upon whom statute imposes the duty to pay. The Respondents argue that failure to enjoin the accounting officer is not a mere technicality but goes to enforceability. Further, mandamus being discretionary, the Subjects/Applicants must demonstrate a statutory duty, demand, refusal, and absence of alternative remedy, which they have not satisfied, as no proper demand or proof of service has been shown. 22. The Respondents contend that although judgment was delivered on 31st October 2023, the certificate of order against the Government was issued on 25th March 2026, nearly at the end of the budget cycle, and obligations must be discharged within constitutional budgetary frameworks. The Respondents deny bad faith or deliberate disobedience and urge dismissal of the application dated 7th May 2026 with costs, citing Republic v County Chief Officer Finance & Economic Planning Nairobi City County ex-parte Stanley Muturi [2016] KEHC 3265 (KLR) as authority against awarding costs. Analysis and determination 23. The court has considered the application, supporting affidavit, grounds of opposition, replying affidavit NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 10 | P A G E

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together with the rival submissions on record; the issue for determination is whether the application for grant of order for mandamus is merited. 24. In Marigi v Governor, Kajiado County [2025] KECA 523 (KLR) the Court of Appeal cited section 21 of the Government Proceedings Act which stated as follows: “Section 21 of the Government Proceedings Act provides how orders obtained against the Government are to be settled. That provision specially places the duty to pay a decree against the Government upon the Accounting Officer. Section 21(3) provides as follows: “If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon: Provided that the court by which any such order as aforesaid is made or NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 11 | P A G E

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any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.” (Emphasis added). In 2015, section 21 of the Government Proceedings Act was amended by section 2 of the Government Proceedings (Amendment) Act No. 35 of 2015, which added sub-clause (5) to section 21, which now provides as follows: “This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.” (Emphasis added).” 25. Still in Marigi v Governor, Kajiado County (Supra), the Court of Appeal cited the case of Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya [2019] eKLR, the High Court held as follows: “The grant of the orders of Certiorari, Mandamus and Prohibition is discretionary. The court is entitled to take into account the nature of the process NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 12 | P A G E

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against which judicial review is sought and satisfy itself that there is reasonable basis to justify the orders sought.” 26. In Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County ExParte David Mugo Mwangi (Supra), Republic v Attorney General & Another Ex parte Orbit Chemicals Limited (supra), where the court cited the case of Consolata Kihara & 241 Others v Director Kenya, Trypanosomiasis Research Institute (Supra), where the courts held that mis-joinder does not invalidate judicial review proceedings. 27. In this instant case, the Subjects/Applicants aver that leave to institute judicial review was granted on 30th April 2026, and that they were unfairly terminated as employees of the Respondents, leading to Nakuru ELRC No. E039 of 2022, where judgment on 31st October 2023 awarded salaries in lieu of notice, gratuity, compensation, costs, and interest. Despite service of the decree and certificate of order against the Government, the decretal sum remains unpaid, prompting their request for mandamus under Section 21(3) of the Government Proceedings Act. The Respondents, NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 13 | P A G E

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through grounds of opposition and a replying affidavit by their Principal Legal Officer, argue the application is incompetent for failure to enjoin accounting officers under the Public Finance Management Act, insist payment is subject to budgetary processes, deny refusal to pay, and contend no proper demand was made. They emphasize mandamus is discretionary and inappropriate where compliance is ongoing, urging dismissal of the application with costs. 28. The grant of mandamus is discretionary and must rest on a sound basis. It finds that non-joinder of accounting officers is not fatal and, upon review of the record, notes that judgment was delivered on 31st October 2023 by Hon. Justice Hellen Wasilwa awarding one month’s salary in lieu of notice, gratuity at 31%, and three months’ salary for unfair termination. The computations were adopted as the Court’s order on 6th March 2024; costs were taxed at Kshs. 435,087/=, and interest at 6% per annum was granted on 30th July 2025, followed by issuance of a Certificate of Order against the Government on 25th March 2026. Despite service, the decretal sum remains unsatisfied, the stay order having lapsed upon non-compliance. NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 14 | P A G E

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29. The Respondent having been served with the decree and the certificate of order granted failed from 6th March 2024 to make efforts to settle the decretal sum. They did not appeal the decree or apply for review of the same and so there is a good reason to grant the order for mandamus as prayed. 30. The Respondent also submit they have no budget to meet their obligation. Kenyan courts have on numerous occasions held that lack of budgetary allocation is not a lawful reason for Government to refuse or indefinitely delay payments of debts and/or decrees. In the case of Republic -Vs- Permanent Secretary of State Provincial Administration Internal Security Ex-Parte Fredrick Manoah where court held that:“Government decree is not conditional upon a subsequent budgetary allocation or parliamentary approval. The Government has a responsibility to make provision for its liabilities so that successful litigants are not left without a remedy.” 31.In view of the above findings, the court finds the Applicant is deserving of a mandamus order and is granted accordingly as prayed. NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 15 | P A G E

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32.The application dated 7th May 2026 therefore is hereby allowed as prayed as follows: a.That an order of Mandamus do issue compelling the Respondents to pay each of the Subjects/Applicants the decretal sums awarded, being: i. 1 month salary in lieu of Notice ii. Gratuity at 31% as per their contract of employment iii. Compensation equivalent to 3 months’ salary for unfair termination iv. Interest at 6% per annum on the above. v.Costs of suit together with interest and costs, being compensation granted by the Court in the judgment delivered on 31st October 2023 and the subsequent decree dated 26th November 2025, with costs assessed and certified at Kshs.435,087/= in Nakuru ELRC No. E039 of 2022: Rebeccah Bitengo Achuti & 28 Others v County Government of Nakuru & Nakuru County Public Service Board, and as confirmed by the Certificate of Order against the Government thereafter issued. NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 16 | P A G E

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33. The Subjects/Applicants will have costs of the application. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 25th Day of September 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 17 | P A G E

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impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which proportionate is and to facilitate affordable just, expeditious, resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE NKU ELRC JUD. REVIEW NO. E006 OF 2026 RULING 18 | P A G E

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