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ELRCPartially AllowedELRC Judicial Review Application No. 3 of 2015

Njuguna & 66 others v Attorney General & 2 others (Employment and Labour Relations Judicial Review E001 of 2021) [2025] KEELRC 2016 (KLR)

Employment and Labour Relations Court of Kenya
30 June 2025
2,813 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Employment Court declined to force KCAA to pay the full Kshs 180 million award but ordered release of the undisputed portion within 90 days.

What this practically means

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Executive summary

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The Applicants, former employees of the Kenya Civil Aviation Authority, filed a Notice of Motion dated 7th June 2021 seeking an order of mandamus compelling the Director-General of the Kenya Civil Aviation Authority to pay Kshs. 180,300,964 plus interest in satisfaction of decrees issued in ELRC Judicial Review Application No. 3 of 2015, and leave to commence execution before taxation of their bill of costs. The decrees arose from a dispute over salary arrears following their dismissal in 2002, with judgments by Ndolo J (27th October 2017) and Makau J (28th September 2018). The 2nd Respondent opposed the application, contending that review applications in ELRC JR No. 3 of 2015 were pending, that execution against its assets is barred by section 43(1) of the Civil Aviation Act, and that it was willing to deposit only an undisputed sum. It also noted that an appeal (Civil Appeal E141 of 2023) had been filed against the dismissal of the review applications. The court held that since an application on the issue of review was pending before the Court of Appeal, execution had not crystallized and mandamus could not issue for the full decretal sums. Instead, taking account of the Respondent's concession, the court directed that the undisputed amount be released forthwith to the Applicants' counsel within 90 days, with execution available on default, and awarded costs of the application. The application was therefore partially allowed.

Questions the Court framed

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

  1. 1.Whether the Applicants are entitled to the writ of Mandamus compelling the Director-General of the Kenya Civil Aviation Authority to pay the decretal sums
  2. 2.Whether the Applicants ought to be granted leave to commence execution proceedings against the 2nd Respondent before the taxation and certification of the bill of costs

Key legal issues

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01

Whether Mandamus should issue to compel payment of the decretal sums

Holding

Mandamus was not granted because the decretal amounts remain disputed and subject to a pending appeal in the Court of Appeal; only the undisputed amount was ordered released.

Reasoning

The court acknowledged the decrees from Ndolo J and Makau J and that the review applications in ELRC JR No. 3 of 2015 were dismissed. However, an appeal (Civil Appeal E141 of 2023) against the dismissal of the review was filed, meaning the issue of the correct amounts is still pending. Since an application on review is before the Court of Appeal, execution has not crystallized, and mandamus could not issue for the full sums; the court instead released the undisputed amount.

p. 6
02

Whether the undisputed sum should be released pending final determination

Holding

The court directed release of the undisputed amount to the Applicants' counsel within 90 days, with execution to issue in default.

Reasoning

The 2nd Respondent's submissions indicated willingness to release an undisputed sum into a joint interest-earning account. The court adopted this concession and ordered that the undisputed amount be released forthwith to the Applicants' counsel for transmission to the Applicants, to be released within 90 days, failing which execution may proceed on that amount.

p. 6

Legal principles established

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  • Where a decretal sum is partly disputed and an appeal on review is pending, the court may direct release of the undisputed portion with execution available on default
  • Mandamus will compel performance of a public duty imposed by statute where the person entitled expects its performance

Court orders

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  1. 1.The undisputed amount be forthwith released to the Applicants' counsel for transmission to the Applicants pending final determination of the appeals or agreement by the parties
  2. 2.The amounts be released within 90 days, in default of which execution may proceed on the said amount
  3. 3.Costs in the application

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under its judicial review mandate; Article 48 and Article 159 of the Constitution invoked by the Applicants

Relief refused

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Order of Mandamus compelling the 2nd Respondent to pay Kshs. 180,300,964 plus interest

There is a pending appeal before the Court of Appeal on the issue of review, so the execution has not crystallized and the exact sums payable remain in dispute

p. 6

Leave to commence execution proceedings against the 2nd Respondent before taxation of the bill of costs

Not granted as sought; the court instead ordered release of only the undisputed sum

Costs

Costs in the application

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 will therefore direct that the undisputed amount be forthwith released to the applicant's counsel herein for transmission to the applicants pending final determination of the appeals or agreement by the parties.
p. 6Release of undisputed decretal sum
The amounts be released within 90 days. In default execution may proceed on the said amount . Costs in the application.
p. 6Final orders and timeline
In view of the fact that there is an application pending before the Court of Appeal on the issue of review, the execution has not crystalized.
p. 6Refusal of mandamus pending appeal

Issues in the judgment

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material

The judgment states different undisputed amounts in the Respondent's pleadings and in the court's directions: Kshs. 73,015,632 in the replying affidavit versus Kshs. 13,015,632 in the court's ruling, making the sum ordered released ambiguous.

minor

Conflicting dates for the filing of Civil Appeal E141 of 2023: 9th March 2023 in submissions versus 19/3/2023 in the court's own narration.

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, "Njuguna & 66 others v Attorney General & 2 others (Employment and Labour Relations Judicial Review E001 of 2021) [2025] KEELRC 2016 (KLR)", Case Analysis (2025). ELRC Judicial Review Application No. 3 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2016/eng@2025-06-30

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