Republic v Baringo County Public Service Board Ex parte Zipporah Mwangi & 18 others [2017] KEELRC 1939 (KLR)
The bottom line
#The High Court in Nakuru quashed employment letters that ignored an earlier judgment and ordered fresh ones, but refused to force payment of costs because the applicants hadn't first tried to recover them.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether certiorari should issue to quash the letters of appointment dated 24 October 2016 issued in contravention of the judgment delivered on 22 July 2016
- 2.Whether mandamus should issue compelling the Respondent to issue fresh letters of appointment on permanent and pensionable terms effective 1 July 2015
- 3.Whether mandamus should issue compelling the Respondent to pay costs as assessed by the Deputy Registrar in ELR Petition No. 10 of 2015
Key legal issues
#Whether the Respondent's letters of appointment dated 24 October 2016, absorbing the applicants with effect from 1 July 2016, contravened the judgment of 22 July 2016
Yes - the letters were issued in error and not in accord with the judgment, which required absorption on permanent and pensionable terms from 1 July 2015; certiorari and mandamus were merited
The earlier judgment had ordered the Respondent to absorb the ex parte applicants on permanent and pensionable terms with effect from 1 July 2015. The Respondent instead issued appointment letters indicating absorption with effect from 1 July 2016. The Court found this departure from the judgment was an error and granted certiorari to quash the letters and mandamus to compel issuance of fresh letters in conformity with the judgment.
Whether mandamus should issue to compel payment of taxed costs
No - the relief was declined because the applicants failed to demonstrate that the Respondent had refused, failed or neglected to pay the taxed costs
The Court held that an order compelling performance of a duty or obligation should not issue without evidence that the party under the duty has failed to act. The applicants had not shown any attempts to have the Respondent pay the costs as taxed, and there was no evidence that the certificates of costs were served on the Respondent. Mandamus was therefore premature and was refused.
Legal principles established
#- An order of mandamus compelling performance of a duty will only issue after demonstration that the party under the duty has refused, failed or neglected to act
- Under Order 53 rule 4 of the Civil Procedure Rules, no further affidavits (save those filed at the leave stage) are allowed in judicial review proceedings unless leave of the Court is sought and granted
- A party who disregards a court judgment cannot issue appointment letters on terms inconsistent with that judgment; certiorari and mandamus lie to correct the breach
Court orders
#- 1.Certiorari to quash the letters of appointment dated 24 October 2016
- 2.Mandamus compelling the Respondent to issue fresh letters of appointment on permanent and pensionable terms effective 1 July 2015
- 3.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules (leave granted to apply for orders of certiorari and mandamus)
Relief refused
#Mandamus compelling the Respondent to pay the applicants' taxed costs certified on 20 October 2016
The applicants did not demonstrate any attempts to have the Respondent pay the taxed costs, and there was no evidence the certificates of costs were served; mandamus cannot issue without evidence that the party under the duty failed to act
Costs
No order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that the Court allows orders (i) and (ii) as proposed in the motion dated 31 March 2017.
Order (iii) is declined. No order as to costs.
It would not be prudent to issue an order compelling the performance of a duty or obligation without evidence that the party under the duty or obligation has failed to act.
My understanding of Order 53 rule 4 of the Civil Procedure Rules is that no further affidavits (save for those filed at the leave stage) are allowed unless leave of Court is sought and granted.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Baringo County Public Service Board Ex parte Zipporah Mwangi & 18 others [2017] KEELRC 1939 (KLR)", Case Analysis (2017). Judicial Review Motion dated 31 March 2017 (leave granted 30 March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1939/eng@2017-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.