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ELRCDismissedJudicial Review Application arising from Notice of Motion dated 23.05.2025 (re: Nairobi ELRC Cause No. 570 of 2019)

Republic v Director of Finance, Teachers Service Commission; Mutiso (Ex parte Applicant) (Judicial Review Application E029 of 2025) [2025] KEELRC 2254 (KLR)

Employment and Labour Relations Court
29 July 2025
1,561 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A former TSC teacher lost his bid to force payment of a court award because he failed to cooperate with opening the account for the deposit.

What this practically means

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Executive summary

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The ex-parte applicant, a former employee of the Teachers Service Commission whose employment was terminated in March 2019, obtained judgment in Nairobi ELRC Cause No. 570 of 2019 on 13.03.2023, where the termination was found unfair and he was awarded unpaid salary, compensation, notice pay, costs and interest. The Decree and Certificate of Order against the Government were served on the TSC. The TSC had obtained a conditional stay from the Court of Appeal in Civil Application No. 384 of 2023 on 03.11.2023, on condition that it deposit Kshs.2,517,845/- in a joint interest-earning account within 30 days; the applicant averred the deposit was never made. The applicant then moved the Court by notice of motion dated 23.05.2025 seeking an order of mandamus directing the Director of Finance of the TSC to pay the decretal sum, interest and costs. The respondent argued it was the wrong party given Article 253 of the Constitution and section 22 of the TSC Act; that the deposit failed because the applicant's advocates declined to complete account-opening forms; and that payment required National Treasury approvals under budgeting guidelines. The Court held that the Director of Finance was the proper party, that section 21(3) of the Government Proceedings Act imposed an unqualified statutory duty on the accounting officer to pay once the certificate was served, and that the duty to pay had fallen due. Nevertheless, mandamus was refused because the applicant had not rebutted the respondent's account that the failure to deposit arose from his own failure to cooperate in processing the accounts, which the Court held was a valid bar to mandamus. The application was dismissed with each party bearing its own costs, and the parties were left at liberty to comply with the conditional stay order or settle amicably.

Questions the Court framed

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

  1. 1.Whether the Director of Finance of the TSC was the proper party against whom mandamus could issue
  2. 2.Whether section 21(3) of the Government Proceedings Act imposed a duty on the accounting officer to pay the decretal sum without National Treasury approval
  3. 3.Whether the applicant was entitled to an order of mandamus compelling payment of the decretal sum in ELRC Cause No. 570 of 2019

Key legal issues

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01

Proper party for mandamus against the TSC

Holding

The applicant sued the proper party; the Director of Finance is the Commission's officer vested with the duty to process and cause payment of the decretal sum

Reasoning

The Court accepted the applicant's submission that the Director in charge of Finance is the officer mandated to process payments on behalf of the TSC. It found the applicant had sued the proper party in terms of section 12 of the Employment and Labour Relations Act and the definition of 'employer' in section 2 of the Employment Act, notwithstanding the respondent's invocation of Article 253 of the Constitution and section 22 of the TSC Act on corporate personality and exemption from personal liability.

p. 4
02

Statutory duty to pay under a certificate of order against the government

Holding

The certificate was served and the duty to pay had fallen due under section 21(3) of the Government Proceedings Act, without requiring National Treasury approval

Reasoning

The Court found it undisputed that section 21(3) of the Government Proceedings Act imposes a statutory duty on the accounting officer to pay the sums specified in the certificate to the person entitled, together with any lawful interest, and that the section does not make payment conditional on Treasury approval. The certificate having been served, the duty to pay had fallen due. However, this finding alone did not result in mandamus because of the bar on the facts.

p. 4
03

Bar to mandamus based on the applicant's failure to cooperate with the conditional stay order

Holding

Mandamus was refused because the applicant did not rebut the respondent's evidence that the failure to deposit the decretal sum was occasioned by the applicant's failure to process the relevant accounts for the deposit

Reasoning

The Court of Appeal had granted a conditional stay on 03.11.2023 requiring deposit of Kshs.2,517,845/- in a joint interest-earning account. The respondent averred that it forwarded account-opening details but the applicant's advocates declined to complete and return the executed forms. The Court found the applicant had not rebutted this account and held that his failure to cooperate was a valid bar to mandamus, leaving parties at liberty to comply with the conditional stay or settle amicably.

p. 4

Legal principles established

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  • Section 21(3) of the Government Proceedings Act imposes a statutory duty on the accounting officer concerned to pay sums specified in a certificate of order to the person entitled, and does not condition payment on approval of the National Treasury
  • An applicant's own failure to cooperate in compliance with a conditional stay order is a valid bar to the grant of mandamus

Court orders

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  1. 1.The application is dismissed
  2. 2.Each party to bear own costs of the application
  3. 3.Parties at liberty to take steps to comply with the conditional stay order and related deposit or amicable settlement of the decretal sum

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 10, 22, 23, 47, 48 and 237 of the Constitution of Kenya; Sections 4 and 11 of the Fair Administrative Actions Act, 2015; Sections 8 and 9 of the Law Reform Act

Relief refused

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Order of mandamus directing the Director of Finance of the TSC to pay the decretal sum, interest and costs in ELRC Cause No. 570 of 2019

The applicant failed to rebut the respondent's case that the failure to deposit the decretal sum under the conditional stay was occasioned by the applicant's own failure to cooperate in processing the relevant accounts; the applicant's failure to cooperate is a valid bar to mandamus

p. 4

Directions towards expeditious disposal of the matter and any other orders

The substantive mandamus relief was refused and the application was dismissed in its entirety

p. 4

Costs

Each party to bear own costs of 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.

In conclusion, the application is hereby dismissed and each party to bear own costs of the application.
p. 4Final orders - dismissal and costs
It is not in dispute that section 21(3) of the Government Proceedings Act imposes a statutory duty on the accounting oficer concerned to pay sums specified in the said order to the person entitled and it does not condition payment to approval of the National Treasury.
p. 4Statutory duty of accounting officer under certificate of order
To that extent the applicant's failure to cooperate is a valid bar to grant of mandamus as prayed for.
p. 4Bar to mandamus - applicant's non-cooperation with conditional stay
The Court considers that the parties should be at liberty to take steps to comply with the conditional stay order and related deposit or amicable settlement of decretal sum as may be just and appropriate.
p. 4Liberty to comply with conditional stay or settle amicably

Issues in the judgment

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minor

The judgment's own reasoning notes the Court of Appeal's conditional stay required deposit within 30 days (by about 03.12.2023), while the respondent's letter forwarding account-opening details was served on 07.12.2023, yet the Court treated the applicant's non-cooperation as the bar to mandamus without resolving whether the stay had already lapsed

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 Director of Finance, Teachers Service Commission; Mutiso (Ex parte Applicant) (Judicial Review Application E029 of 2025) [2025] KEELRC 2254 (KLR)", Case Analysis (2025). Judicial Review Application arising from Notice of Motion dated 23.05.2025 (re: Nairobi ELRC Cause No. 570 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2254/eng@2025-07-29

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