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ELRCDismissedJudicial Review proceedings arising from Nyamira CMC ELRC No. E003 of 2021 (Chamber Summons dated 15th January 2025)

Republic v County Government of Nyamira & 2 others; Kerosi (Exparte Applicant) (Judicial Review Miscellaneous Application E002 of 2025) [2025] KEELRC 1772 (KLR)

High Court of Kenya
5 June 2025
948 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Ex-parte Applicant, by chamber summons dated 15th January 2025, sought leave to apply for an order of mandamus to compel the Respondents to pay him Kshs 2,029,783/=, being the amount due under the decree and certificate of costs issued in Nyamira CMC ELRC No. E003 of 2021, and to compel the 2nd Respondent to issue him with a Personal Identification Number. He relied on Republic v Kenya National Examinations Council ex parte Gathenji and the Fredrick Manoah Egunza decision, contending that a decree against government is enforceable only through mandamus under Section 21(4) of the Government Proceedings Act. The Respondents, through a Replying Affidavit sworn by Jack Magara, the County Secretary and Head of Public Service, opposed the application as premature, pointing to an extant order dated 26th March 2025 in the primary suit restraining execution, and a pending application to set aside the entire judgment. They relied on Market Plaza Limited, Corrugated Sheets Limited, Republic v County Government of Kwale; Charpenel Enterprises Limited, and Republic v Ministry of Transport ex parte Naphas Mmenya, urging that judicial review is a last resort and that mandamus cannot issue to enforce a judgment whose validity is under challenge. The court did not grant the relief sought; the judgment closes with 'Orders accordingly' without enumerating express orders or a costs award. Filed in the interests of advocates enforcing monetary decrees against county governments.

Questions the Court framed

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

  1. 1.Whether leave should be granted to the Ex-parte Applicant to apply for an order of mandamus compelling the Respondents to pay Kshs 2,029,783/= arising from the decree and certificate of costs in Nyamira CMC ELRC No. E003 of 2021
  2. 2.Whether an order of mandamus should issue against the 2nd Respondent to compel issuance of a Personal Identification Number
  3. 3.Whether the pending proceedings before the Magistrate's Court, including the extant order of 26th March 2025 restraining execution and the pending application to set aside the judgment, render the judicial review application premature

Key legal issues

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01

Whether mandamus may issue where execution of the underlying decree is restrained and the judgment is under challenge

Holding

The court accepted the Respondents' position that mandamus should not issue while the validity of the judgment is under challenge and execution is restrained by an extant order in the primary suit

Reasoning

The Respondents showed an order dated 26th March 2025 in Nyamira CM ELRC No. E003 of 2021 restraining execution, plus a pending application to set aside the entire judgment. Granting mandamus would undermine those proceedings and contradict the Government Proceedings Act framework for enforcing decrees against government. The court endorsed the authority of Republic v County Government of Kwale; Charpenel Enterprises Limited (Ex parte) and Republic v Ministry of Transport ex parte Naphas Mmenya, where mandamus was declined in comparable circumstances.

p. 2
02

Whether the judicial review application is premature pending determination of the primary suit

Holding

The court found it just that the proceedings before the Magistrate's Court be allowed to run their full course before mandamus is pursued

Reasoning

The Respondents argued that the primary suit remains active, with an extant restraining order and a pending application to set aside the judgment. The Applicant countered that the set-aside application was an afterthought filed two months after directions in this suit. The court preferred allowing the subordinate court proceedings to run their full course, consistent with the principle that judicial review is a last resort.

p. 3

Legal principles established

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  • A writ of mandamus cannot issue to enforce a judgment whose validity is under challenge, as doing so would render a pending application to set aside the judgment nugatory
  • Orders of judicial review are a measure of last resort and should issue only in exceptional circumstances

Court orders

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  1. 1.The Chamber Summons application is dismissed (the judgment closes with 'Orders accordingly' without enumerating the orders; the relief sought was not granted)

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction to grant leave to apply for an order of mandamus; decree and certificate of costs in Nyamira CMC ELRC No. E003 of 2021 (the judgment does not expressly cite the constitutional/statutory provision)

Relief refused

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Leave to apply for an order of mandamus to compel the Respondents to pay Kshs 2,029,783/= from the decree in Nyamira CMC ELRC No. E003 of 2021

The Respondents established that there is an extant order of 26th March 2025 restraining execution of the decree and a pending application to set aside the entire judgment before the Magistrate's Court; granting mandamus would undermine those proceedings and enforce a judgment whose validity is under challenge

p. 2

Order of mandamus compelling the 2nd Respondent to issue the Applicant with a Personal Identification Number

Falls with the main application, which was not granted in light of the pending proceedings in the Magistrate's Court

Costs

The judgment does not state an express costs order; each party had urged costs in its favour and the closing words are only 'Orders accordingly'.

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.

a writ of mandamus cannot be issued to enforce a judgment whose validity is under challenge
p. 2Mandamus and judgments under challenge
it would only be just and prudent for the proceedings before the Magistrate's Court to be allowed to run their full course
p. 3Prematurity pending determination of the primary suit
orders of judicial review ought to be sought as a measure of last resort and in exceptional circumstances
p. 2Judicial review as a last resort
DATED AND DELIVERED AT KISUMU THIS 5TH DAY OF JUNE 2025 NZIOKI WA MAKAU, MCIARB. JUDGE
p. 3Final orders and disposition

Issues in the judgment

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material

The judgment contains no express final orders or disposition; it ends with 'Orders accordingly' after reciting the Respondents' submissions, leaving the actual orders (and any costs order) to be inferred rather than stated

minor

The judgment nowhere names the deciding court or the case number of these judicial review proceedings; the court and station are inferred from the delivery at Kisumu and the judicial review context

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 County Government of Nyamira & 2 others; Kerosi (Exparte Applicant) (Judicial Review Miscellaneous Application E002 of 2025) [2025] KEELRC 1772 (KLR)", Case Analysis (2025). Judicial Review proceedings arising from Nyamira CMC ELRC No. E003 of 2021 (Chamber Summons dated 15th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1772/eng@2025-06-05

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