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ELRCAllowedJudicial Review Application (Ex parte Applicant's Substantive Motion dated 2nd November, 2023)

Republic v County Government of Turkana & another; Public Service Commission (Interested Party); Koech (Exparte Applicant) (Judicial Review 4A of 2023) [2024] KEELRC 1965 (KLR)

Employment and Labour Relations Court
30 July 2024
HWHellen Wasilwa
3,722 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ordered Turkana County Government to pay a former official over Kshs 9 million in withheld salary, plus 14% yearly interest, until fully paid.

What this practically means

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Executive summary

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The Ex parte Applicant, formerly interim Chief Finance Officer of the County Government of Turkana, sought judicial review relief by way of mandamus compelling the 1st and 2nd Respondents to comply with orders issued in Nairobi ELRC Misc. E101 of 2022 and a Public Service Commission directive to release withheld salary and allowances from 1st March 2013 to 31st December 2016 amounting to Kshs. 9,308,352 plus 14% interest per annum. The claim traced back to Nakuru ELRC Cause No. 92 of 2014, in which the applicant obtained judgment for unlawful suspension and payment of withheld dues, a consent quantum of Kshs 4,726,109 plus costs recorded before Radido J, and subsequent orders by Hon. J. Kebira in the 2022 miscellaneous application adopting the PSC directives and granting leave to execute. The Respondents opposed, contending the decretal sum had been paid in full in January 2015, the applicant had been reinstated and later transferred to the National Government, the application was time-barred by the six-month limitation period for mandamus, and the mandatory procedure under section 21 of the Government Proceedings Act read with Order 29 Rule 3 of the Civil Procedure Rules had not been followed. The court, Wasilwa J, found the contention that the applicant had not followed due process did not hold, held that the applicant had demonstrated he was owed with the backing of court orders known to the Respondents, and granted mandamus as prayed. The Respondents were directed to pay Kshs. 9,308,352 with 14% interest from 1st March 2013 until payment in full, and to bear the costs of the application.

Questions the Court framed

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

  1. 1.Whether the Ex parte Applicant has any valid claim against the Respondents capable of being enforced by judicial review
  2. 2.Whether the Applicant is entitled to the order of mandamus as prayed for in the Application
  3. 3.Whether the orders issued in Nairobi ELRC Misc. Application No. 101 of 2022 can be enforced by way of mandamus when the decretal sum had allegedly already been paid in full

Key legal issues

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01

Entitlement to an order of mandamus to compel compliance with prior court orders against a county government

Holding

Mandamus was granted to compel the Respondents to comply with the orders in Nairobi ELRC Misc. E101 of 2022 and the PSC directive to pay Kshs. 9,308,352 plus 14% interest.

Reasoning

The court accepted that the applicant was owed withheld salaries and allowances and had orders of the court requiring payment, of which the Respondents were aware having been party to the process. The Respondent's objections that the decretal sum had been paid in full and that the statutory execution procedure under section 21 of the Government Proceedings Act had not been followed were rejected, the court finding the contention that due process had not been followed did not hold.

p. 7

Legal principles established

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  • Where an applicant demonstrates that he is owed by a public body pursuant to orders of the court, mandamus will issue to compel compliance; once the debt and backing court orders are shown, the body has only the option to pay.

Court orders

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  1. 1.An order of mandamus is issued compelling the 1st and 2nd Respondents to comply with the orders of the Court issued in Nairobi ELRC Misc. E101 of 2022 and the directive by the Public Service Commission to release all the Ex parte Applicant's withheld salary and allowances from 1st March, 2013 to 31st December, 2016 amounting to Kshs. 9,308,352 together with interest of 14% p.a accrued thereto from 1st March, 2013 till payment in full
  2. 2.The Respondents to pay the costs of the JR Application

The bench

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

HW
majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction of the Employment and Labour Relations Court (order of mandamus), following transfer of the file from ELRC Nairobi to Nakuru vide order of Hon. J. Rutto

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.

An order of mandamus is issued compelling the 1st and 2nd Respondents to comply with the orders of the Court issued in Nairobi ELRC Misc. E101 of 2022: Joseph Kiprono Koech –V- County Government of Turkana & Another and the directive by the Public Service Commission to release all the Ex parte Applicant’s withheld salary and allowances from 1st March, 2013 to 31st December, 2016 amounting to Kshs. 9,308, 352 together with interest of 14% p.a accrued thereto from 1st March, 2013 till payment in full.
p. 7Final orders - mandamus issued
In my view the Respondents have only one option which is to pay and I find that the application herein is allowed and I grant orders of Mandamus as prayed directing as follows:
p. 7Court's conclusion on entitlement to mandamus
That the Respondents will pay costs of this JR Application.
p. 7Costs order

Issues in the judgment

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material

Judgment contains unresolved factual conflict: Respondents averred the decretal sum of Kshs 5,255,109 was paid in full on 20th January 2015 and that nothing was owing, yet the court granted mandamus for Kshs 9,308,352 without expressly resolving the alleged payment.

minor

Typographical inconsistencies in dates and figures (e.g. leave granted '17th October, 023'; '9,308, 352' spacing; 'Misc. Application No. 101 20122').

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v County Government of Turkana & another; Public Service Commission (Interested Party); Koech (Exparte Applicant) (Judicial Review 4A of 2023) [2024] KEELRC 1965 (KLR)", Case Analysis (2024). Judicial Review Application (Ex parte Applicant's Substantive Motion dated 2nd November, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1965/eng@2024-07-30

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