Republic v Machakos County Assembly Service Board & 2 others; Mutisya & 16 others (Ex parte Applicants)

3. Costs of the application be granted to the ex parte applicants. 2. The application is supported by the Supporting Adavit of Nelly Itumbi Mutisya, one of the ex parte applicants. It is based on the fact that the respondents have all been served with decrees against the Machakos County Assembly Service Board in respect of Machakos ELRC No. 4 of 2018, consolidated with 106 others. The respondents' accounting ocers have a specic public legal obligation, imposed under section 21 of the Government Proceedings Act, to pay the total decretal amount with interest upon service of decrees and certicates of order against the 1st respondent. However, despite service and existence of liability, the respondents have refused and failed to settle the decretal sum. 3. In the Supporting Adavit, Mutisya avers that the respondent are in breach of the Constitution and section 18(5)(a) of the Employment Act in refusing to pay their terminal dues. The law requires the employer to pay the employee's full terminal dues at the end of employment. Employment ended in August 2017, and over 7 years have passed without payment of terminal dues. 4. The orders sought compel the respondents to pay the decretal sum, with interest, as due and payable, with additional interest. 5. Mutisya averts that on 30 April 2024, the respondents were served with the decrees and a demand to pay the ex parte applicants. On 15 January 2026, the respondents were served with the Certicates of Order against the Machakos Service Board and a demand letter but have refused to pay. On 6 February 2026, the respondents were served with a reminder letter. They have shown no willingness to settle the decretal sum leading to these proceedings. The respondents are thus abusing the immunity granted under Order 29 of the Civil Procedure Rules and section 21(4) of the Government Proceedings Act. Hence, the court should step in and protect the ex parte applicants' institutional right to fair labour practices guaranteed under Article 41 of the Constitution. 6. Mutisya avers that the foundation le in these proceedings is Machakos ELRC No. 4 of 2018. The Court delivered judgment on 14 October 2022 in favour of the ex parte applicants against the respondents, who have refused and failed to make payments under the decree. 7. In reply, the respondents led the Replying Adavit of Anne M. Kiusya, the 3rd respondent, who avers that, as the chairperson of the 1st respondent and acting for the 1st and 2nd respondents, she is conversant with the matters addressed herein. The ex parte applicants seek orders of mandamus and payment of decrees arising from Machakos ELRC No. 4 of 2018, consolidated with 106 others, in the sum of Ksh. 37,716,975.75 with interest. The ex parte applicants also seek the court to determine the time period within which the decretal sum should be paid. 8. Kiusya avers that the decree the ex parte applicants refer to arises from Machakos ELRC No. 4 of 2018. This is a complex matter involving 107 claimants who led separate claims and later consolidated them. Nelly Itumbi's claim became the test suit. The hearing was delayed for several reasons, including government bureaucracy and procurement systems, changes of advocates, and changes in the government and the Public Service Board. 9. The delays in hearing the matter to a conclusion are apparent. Due to the COVID-19 pandemic, the matter was only heard on 21 September 2021, and judgment was reserved on notice. By September 2022, the court had not delivered judgment, although the County Assembly of Machakos had engaged in the matter and had the option to le an appeal. Hence, if the orders sought in the matter are issued, the intended appeal will be rendered nugatory and cause irreparable loss and damage to the respondents, considering that the respondents do not have their own income or revenue collection role. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2668/eng@2026-09-30 2

page 2 of 5

10. Kiusya avers that the amounts involved are substantial and not budgeted for in this nancial year. It was not clear in which year the same would be determined. Under the Public Finance Management Act, any spending of government funds without an approved budget is illegal and constitutes nancial misconduct. The County Assembly relies solely on the budget provided from the equitable share appropriated to the County Government in the national government's budget. The respondent thus operates on a predetermined cash ow, with monies paid directly to employees and for the supply of goods, services, and works, directly to vendors. 11. The judgment was delivered on 14 October 2022, and a quantum was issued on 21 June 2023, and the respondents were found liable to pay. As the respondents were keen to appeal, they led the rst Notice of Appeal dated 4 July 2023. On 4 August 2025, the Court of Appeal assigned Civil Application No. E463 of 2025 to the 1st respondent on an application dated 30 July 2025 seeking a stay of execution pending determination of the intended appeal. The Court of Appeal is yet to issue further directions in the matter. 12. Kiusya hence avers that the detailed sum and issues arising over time between the parties are in contest. The respondents wish to exercise their right of appeal, and the matters herein have not been exhausted, as there is an arguable appeal. 13. Although judicial review is entrenched in the Constitution to safeguard constitutional principles and values, every person deserves the equal protection of the law. The respondents' right to proceed on appeal should be weighed against those of the ex parte applicants' right to proceed with execution. If allowed to proceed as sought herein, this will paralyse the respondents' operations. 14. Kiusya admits that the respondents were served with the Certicate of Order dated 15 January 2026 assigned from Machakos ELRC No. 4 of 2018. In view of the right of appeal and the complex nature of the matters herein, consolidating 107 claimants, it is only fair to allow the appeal process to conclude rst. Determination 15. The essence of the instant application is to compel the respondents to settle the decree and certicate of orders against the County Assembly Service Board of Machakos in Machakos ELRC Case No. 4 of 2018, which consolidated 106 others for the sum of Ksh. 37,716,975.75, with interest, and a timeline for making the payment. The respondents assert that the issues herein are complex and have taken time to determine, and that they intend to le an appeal, which should be allowed to be completed before these proceedings. 16. The respondents' refusal to obey court orders issued on 14 March 2024 compelling them to pay Ksh. 13,404,913.33 to the ex parte applicant. For the disobedience, the ex parte applicant is seeking that the respondents, as the accounting ocers for the respondents, be found in contempt of court and committed to civil jail for a term not exceeding six months. 17. Proceedings in Machakos ELRC No. 4 of 2018 are not contested. Therefrom, a decree was served on 30 April 2024. 18. A Certicate of Order Against the Government was served on 15 January 2025. 19. Demands to settle the decree have been served, and the respondents have not contested it. 20. There is no compliance. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2668/eng@2026-09-30 3

page 3 of 5

21. The respondents have failed and neglected to settle the court's decree despite being aware of it. The Supreme Court of Kenya, in Githiga & 5 Others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR), conrmed that courts have the inherent power to enforce compliance with their lawful orders. In Republic v Ahmad Abolfathi Mohammed & another, SC Criminal Application No 2 of 2018 [2018] eKLR, it was held that the deliberate refusal by a party, including the government, to comply with lawful directions and orders of the court is contempt of court. Contemnors demean the integrity and authority of courts and deride the rule of law. This must not be allowed. 22. In this case, the respondents, having been served with the orders herein, know the terms but have failed to comply. The payment to the ex parte applicants of the decretal sum of Ksh. 37,716,975.75, as directed on 14 October 2022, and the tabulations directed on 21 June 2023 remain unpaid. 23. Compliance with court orders is imperative on the party served with them, as held in Michael Sistu Mwaura Kamau v Director of Public Prosecutions & 4 Others. 24. The respondents, through the Replying Adavit of Anne Kiusya, acknowledge their active engagement in the matter. However, they aver that an appeal is intended, and that the same will be rendered nugatory if the orders granted are allowed. 25. These averments by the 3rd respondent are out of context. To begin with, judgment was delivered on 14 October 2022. There is no appeal. No appeal has been led. The Notice of Appeal dated 4 July 2023 is not the subject of the appeal but merely an intention that has not been actualised. 26. Additionally, as an entity, upon the judgment, the decree is now considered served; the respondents have not engaged the ex parte applicants on the modalities of payment. Furthermore, a money decree is not a complex issue as the 3rd respondent asserts. There should either be an oer to pay or an election not to pay. 27. Fundamentally, no application seeks a stay of execution to allow any appellant to apply for procedures. The respondents' response is thus a sheer abuse of court process. The respondents have failed to take accountability for a public duty vested in them. Valid decrees, orders, and certicates have been issued against the government, and it has deliberately refused to settle. 28. The subject employment dispute arose in August 2017. Although judgment was delivered in October 2022, the settlement and payment of terminal dues under section 19(5) of the Employment Act remain outstanding. Such legal duty exists to date. 29. To this extent, the court is satised that the respondents have wilfully and deliberately disobeyed orders herein issued on 14 October 2022 and failed to pay the tabulated amounts as directed on 21 June 2023. The decree in Machakos ELRC Cause No. 4 of 2018 remains unsettled, despite the respondents' awareness. 30. The admission of service of the Certicate and Order Against Government on 15 January 2026 should have triggered action. Since June 2023, the respondents have not made the planning and budgetary allocations for the decree at issue in these proceedings. 31. In light of the above matters, the inevitable conclusion is as follows: a. The respondents are hereby directed to pay the sum of Ksh. 37,716,975.75 to the ex parte applicants within 90 days from the date hereof. The sum shall bear interest at court rates from 21 June 2023 until paid in full. Accordingly, the court shall monitor the payment process. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2668/eng@2026-09-30 4

page 4 of 5

b. At the lapse of the 90 days, the parties shall report to the court full compliance. Where this is not adequately addressed, the court directs the personal attendance of the 3rd respondent and Anne M. Kiusya, together with the 2nd respondent. c. Mention on 18 January 2027. d. Costs of the instant application to the ex parte applicants. 32. In the interim, the parties may reach a consent on any aspect of compliance as directed above. Such interim measure should not defeat the essence of compliance by the respondents as directed above. 33. Orders accordingly. DELIVERED IN OPEN COURT THIS 30TH DAY OF SEPTEMBER 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi ……………………… and …………………… https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2668/eng@2026-09-30 5

page 5 of 5