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ELRCAllowedJudicial Review Application (Notice of Motion dated 13th April 2018), arising from ELRC Petition No 10 of 2015

Republic v Baringo County Public Service Board; Mwangi & 32 others (Exparte) (Miscellaneous Judicial Review 1 of 2018) [2024] KEELRC 1607 (KLR)

High Court of Kenya (Judicial Review)
25 June 2024
HWHellen Wasilwa
1,391 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court ordered the Teachers Service Commission to pay Kshs 2.59 million in awarded legal costs, confirming mandamus as the way to enforce money judgments against government bodies in Kenya.

What this practically means

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Executive summary

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By a Notice of Motion dated 13 April 2018, brought under sections 8 and 9 of the Law Reforms Act, section 21 of the Government Proceedings Act and Order 53 of the Civil Procedure Rules, the ex parte Applicants sought an order of mandamus compelling the Respondent (the Teachers Service Commission) to pay them Kshs 2,592,970 being costs taxed by the Deputy Registrar in ELRC Petition No 10 of 2015, following judgment of 22 July 2016 and a certificate of costs issued on 20 October 2016. The Respondent opposed the application through a replying affidavit of its Chairperson, Mark Suge, contending that the application was premature, incompetent, contrary to section 103 of the Public Finance Management Act, and res judicata in view of earlier judicial review proceedings in which similar prayers were declined. The court held that judgment and taxation against the Respondent were established and service of the certificates was not denied. On res judicata, the court noted a Court of Appeal ruling of 24 November 2023 (Ochieng, Achode and Kiru JJA) remitting the earlier application back to the superior court for determination on merit, so the doctrine did not apply. Finding the application merited, the court issued an order of mandamus compelling the Respondent to pay the Applicants, through M/S Julius Juma & Co. Advocates, Kshs 2,592,970, and awarded the costs of the application to the Applicants. Judgment was delivered virtually on 25 June 2024 by Hellen Wasilwa J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Application is premature
  2. 2.Whether the Application is res judicata in view of Nakuru Judicial Review No 4/8 of 2017
  3. 3.Whether the ex parte Applicants are entitled to an order of mandamus compelling the Respondent to pay the taxed costs of Kshs 2,592,970

Key legal issues

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01

Whether the application was res judicata given the earlier judicial review proceedings

Holding

Not res judicata; the Court of Appeal had remitted the earlier application to be determined on merit.

Reasoning

The Respondent argued the mandamus claim had been declined in a prior judicial review application. The court however noted a Court of Appeal ruling of 24 November 2023 (Ochieng, Achode and Kiru JJA) ordering that application to be remitted back to the superior court for determination on merit. The res judicata objection therefore failed.

p. 3
02

Whether the ex parte Applicants were entitled to mandamus for payment of taxed costs

Holding

Yes; the Applicants proved judgment, taxation, certification and service, and non-payment, warranting mandamus.

Reasoning

Judgment was entered against the Respondent in ELRC Petition No 10 of 2015, costs were taxed at Kshs 2,592,970 in October 2016, the certificate of order and certificate of costs were served and not denied, yet payment was not made. Mandamus is the proper mode of enforcing a monetary decree against the Government, and the court issued it.

p. 3

Legal principles established

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  • Where a monetary decree exists against the Government after judgment and taxation, the decree can only be enforced by an order of mandamus compelling the accounting officer to pay.

Court orders

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  1. 1.An order of mandamus compelling the Respondents to pay the ex parte applicants through M/S Julius Juma & Co. Advocates the sum of Kshs 2,592,970 being costs assessed by the Deputy Registrar in ELRC Petition No 10 of 2015 and certified by the Certificate of Order issued on 20th October 2016
  2. 2.Costs of the application to be paid by the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HW
majority

Wrote the judgment

Jurisdiction invoked
Sections 8 and 9 of the Law Reforms Act, section 21 of the Government Proceedings Act and Order 53 of the Civil Procedure Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find the application has merit and is allowed and I therefore issue an order of mandamus compelling the Respondents to pay the ex parte applicants through MS Julius Juma & Co. Advocates the sum of Kshs 2,592,970 being the costs assessed by the Deputy Registrar in ELRC Petition No 10 of 2015 and certified by the Certificate of Order issued on the 20th October 2016.
p. 3Final orders - mandamus issued
The issue of the application being res judicata is therefore not true.
p. 3Res judicata objection rejected
The Respondents will pay costs of this application.
p. 3Costs

Issues in the judgment

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minor

Internal inconsistency in references to the prior judicial review number: the replying affidavit refers to Nakuru Judicial Review No 4 of 2017 while paragraph 20 refers to 'Judicial Review application No 8 of 2017'.

minor

No party names or case number appear in a coram/caption in the text provided; parties and case number reconstructed from the body of the judgment, and the ex parte Applicants' full identity beyond Zipporah Mwangi is not stated.

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 Baringo County Public Service Board; Mwangi & 32 others (Exparte) (Miscellaneous Judicial Review 1 of 2018) [2024] KEELRC 1607 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 13th April 2018), arising from ELRC Petition No 10 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1607/eng@2024-06-25

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