REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI CAUSE NO. E2204 OF 2017 (Before Hon. Justice Dr. Jacob Gakeri) LUCY MUTHONI KAMANDE AND JANE WANGARI MUIGAI (Suing as the administrators and personal representatives of the estate of JOSPHAT MACHARIA MUIGAI (Deceased)…………………….………………………..……. C LAIMANT VERSUS THE DIRECTOR-DIRECTORATE OF OCCUPATIONAL SAFETY AND HEALTH SERVICES ……………….………1ST RESPONDENT ACE FREIGHT LTD………………………………..2ND RESPONDENT RULING Before the court for determination is the Ex parte Applicants’ Chamber Summons dated 7th April 2025 filed on even date seeking orders that: 1. Leave be granted to the applicants to apply to the court to issue orders of Mandamus directing the respondent to do computation or assessment of award dues to the applicants as per the Judgment dated 12th July 2022. 2. In the alternative to (1) leave be granted to the applicants to institute contempt of court proceedings against the Respondent for failure to compute or assess the award due to the applicants. 3. The court be pleased to issue an order of Mandamus directing that the respondent to direct the 2 nd respondent to duly fill DOSH FORM I to enable assessment of compensation. 4. In the alternative to (3) above an order be issued under section 11, (2) (c) of the Fair Administrative Action Act 1 ELRC NAIROBI 2204 OF 2017
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directing the 2nd respondent to fill and submit the Accident Notice Form I to the 1st respondent forthwith but not later than 7 days from the delivery of Judgment or issuance of orders by this court. 5. The claimant be awarded the costs of these proceedings. The applications is expressed under Order 53 Rule 1 of the Civil Procedure Rules and the Law Reform Act Section 8 and 11 of the Fair Administrative Action Act, and Section 8 and 26 (2) of the Work Injury Benefits Act and is based on the grounds outlined on its face and the Verifying Affidavit sworn by Lucy Muthoni Kamande on 7th April 2025. The applicants’ case is that the deceased died on 25 th April 2016 in the course of his employment and a suit was filed in 2017 and judgment delivered on 12th July 2022 which ordered the Director of Occupational Safety and Health Services (DOSH) to compute or assess the award due to the applicants or provide reasons to do so. The application is unopposed. Applicant’s submissions On Mandamus, reliance was placed on the decision in Republic v Cabinet Secretary, Government of Nairobi County & 5 others (2025) KEHC 118900 (KLR) cited in Kenya National Examinations Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others (1997) eKLR, on the scope of the order of mandamus and its effect to urge the court to direct the 1st respondent to conduct its statutory duty and assess compensation. On contempt of court reliance was place on section 5 of the Judicature Act and the decisions in Christine 2 ELRC NAIROBI 2204 OF 2017
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Wangari Chege v Elizabeth Wanjiru Evans & others (2014) eKLR on the requirements of contempt to urge that the application should not be struck out but the court directs that it be served for the 1st respondent’s response and a notice to show course to issue. Reliance was also placed on the decision in Nyarawati v Action Africa Help International (2025) KEELRC 370 (KLR) on the appearance of a contemnor in court. Further submissions related to the alternative reliefs to compel the respondents to perform various actions. In conclusion, counsel submitted that should the court find that the matter was referred to the DOSH as opposed to a directive, the court should grant leave for the applicants to file a substantive motion for Mandamus. This is an Ex parte application by the Applicants seeking leave to institute judicial review proceedings against the Respondents for an order of Mandamus pursuant to a Judgment delivered on 12th July 2022. Order 53 of the Civil Procedure Rules provides; (1) No application for an order of mandamus prohibition certiorari shall be made unless granted in accordance leave therefor has or been with this Rule. (2) An application for leave shall be made ex parte in Chambers and shall be accompanied by (a) a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and 3 ELRC NAIROBI 2204 OF 2017
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(b) Affidavits verifying the facts and avertment that there is no other cause pending and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application. (3) The judge may, where leave denotes stay, impose such terms as to costs and as to giving security as be thinks fit including cash deposits, bank guarantee or insurance bond from a reputable institution. It is trite that the granting of leave to an applicant to apply for judicial review orders is a matter of discretion. In Central Bank of Kenya & another v Ratilal Automobiles Ltd & 10 others (2018) KECA 31 (KLR) the Court of Appeal held as follows: “It is not in dispute that the granting of leave or otherwise in judicial review applications is a discretionary exercise. That discretion has to be exercised judiciously. Again it is trite law that judicial review is concerned with the manner in which a decision is made and not the merits or otherwise of the decision…” In judicial review proceedings the leave stage plays an important role as was stated by this court in Meixnev & another v Attorney General (2005) 2 KLR 189 that; “The leave of the Court is a prerequisite to making a substantive application for judicial review. The propose of the leave is to filter out frivolous applications. The granting of leave or otherwise involves an exercise of judicial discretion… the rest to be applied in deciding whether or not to grant leave is whether the applicant has an arguable case.” 4 ELRC NAIROBI 2204 OF 2017
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See also in this regard Aga Khan Education Services Kenya v Republic & others (2004) 1EA 1. In the instant case the Applicants supported their application for leave with a Verifying Affidavit sworn on 7 th April 2025 by one Lucy Muthoni Kamande, a statutory statement of even date together with a host of annextures. For an unexplained reason counsel for the applicant pleaded and argued the substantive motion which the court did not consider necessary to address at this stage as no leave had previously been granted by the court. Based on the documentation filed by the Applicants, the court is satisfied that the Applicants have an arguable case under the test enunciated in Aga Khan Educational Services Kenya v Republic & others (Supra). The upshot of the foregoing is that leave be and is hereby granted to the Applicant to apply for the order of mandamus against the respondents within 14 days. Parties shall bear their own cost. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 22ND SEPTEMBER, 2026. DR. JACOB GAKERI JUDGE ORDER 5 ELRC NAIROBI 2204 OF 2017
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In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and resolution of civil disputes. DR. JACOB GAKERI JUDGE 6 ELRC NAIROBI 2204 OF 2017 affordable
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