[2016] KEELRC 936 (KLR)
The court found that the applicant holds a valid judgment in his favour which remains unsatisfied by the respondents. The respondents' assertion of a pending appeal was unsupported by evidence. The court determined that the application for leave to apply for an order of mandamus was meritorious, not frivolous, and...
Source-derived case information.
- Citation
- [2016] KEELRC 936 (KLR)
- Parties
- Applicant: David Wanyonyi; Respondent: Hon. Attorney General; Respondent: Chief of Defence Forces; Respondent: Army Commander Kenya Army
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 3 of 2015
- Procedural Posture
- Judicial Review / Ruling on Application for Leave to Apply for Order of Mandamus
- Outcome
- Leave granted for applicant to file substantive motion for mandamus within 21 days.
- Judges
- MSA Makhandia
- Legal Topics
- Judicial Review, Mandamus, Government Liability, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Wanyonyi
Applicant
Hon. Attorney General
Respondent
Chief of Defence Forces
Respondent
Army Commander Kenya Army
Respondent
Procedural Posture
Judicial Review / Ruling on Application for Leave to Apply for Order of Mandamus
Legal Issues
- 1 Whether the applicant is entitled to leave to apply for an order of mandamus to compel payment of a decretal sum by the respondents.
- 2 Whether the existence of a pending appeal precludes the grant of leave for mandamus.
- 3 Whether the application is frivolous, an abuse of process, or lacks merit.
Ratio Decidendi
The court found that the applicant holds a valid judgment in his favour which remains unsatisfied by the respondents. The respondents' assertion of a pending appeal was unsupported by evidence. The court determined that the application for leave to apply for an order of mandamus was meritorious, not frivolous, and not an abuse of process. Consequently, the court granted the orders sought, allowing the applicant to file a substantive motion for mandamus within 21 days. The court emphasized that the applicant is entitled to seek enforcement of the judgment through judicial review, and the respondents' failure to satisfy the judgment justifies the grant of leave.
Court Disposition
Leave granted for applicant to file substantive motion for mandamus within 21 days.
Orders
- Leave is granted to the applicant to institute an application for an order of mandamus compelling the respondents to pay the decretal amount in Industrial Cause No. 401 of 2013, interest thereon at court rates from 17th October 2014 until full payment, and costs.
- A substantial motion should be filed within 21 days from the date of the ruling.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT
NAKURU
JUDICIAL REVIEW NO. 3 OF 2015
IN THE MATTER OF AN APPLICATION FOR LEAVE TO
APPLY FOR AN ORDER OF MANDAMUS
AND
IN THE MATTER OF GOVERNMENT PROCEEDINGS ACT,
CAP. 40, LAWS OF KENYA
AND
IN THE MATTER OF NAKURU INDUSTRIAL CAUSE NO.401 OF 2013
BETWEEN
DAVID WANYONYI..................................................................APPLICANT
v
HON. ATTORNEY GENERAL.....................................1ST RESPONDENT
CHIEF OF DEFENCE FORCES...................................2ND RESPONDENT
ARMY COMMANDER KENYA ARMY........................3RD RESPONDENT
RULING
1. For ruling is a summons application dated 18 May 2015 seeking
1. THAT this Honourable court be pleased to grant leave to the Applicant to institute an application for an Order of Mandamus compelling the Respondents to pay to the Applicant the sum of Kshs 15,672,537/-being the Decretal amount in industrial Case No. 401 of 2013, interest thereon at court rates from 17th October, 2014 until the date of full payment and costs of this matter.
2. ……..
2. Before delving into the instant motion, the Court wishes to note that it had previously dismissed the summons for non-prosecution as the applicant’s counsel had walked out of court without indicating where he was going.
3. The Court, in a ruling delivered on 22 January 2016 reinstated the instant application (dated 18 May 2015) after the applicant made an application on 15 June 2015.
4. On 7 April 2016, the parties agreed that the summons be determined on the basis of record and submissions to be filed.
5. The applicant filed his submissions on 13 April 2016, while the Respondents submissions which ought to have been filed by 21 April 2016 were only filed on 2 June 2016 (the Court has duly considered both submissions).
6. The applicant has a judgment in his favour which has not been satisfied by the Respondents and he intends to execute it through judicial review (mandamus).
7. It therefore cannot be said that the instant application lacks merit; is an abuse of the Court’s process or is frivolous.
8. Although the Respondents have made reference to a pending appeal in their submissions, evidence of such was not placed before Court.
9. In the Court’s view, orders 1 and 2 sought by the applicant in the summons dated 18 May 2015 are meritorious and are granted.
10. A substantial motion should be filed within 21 days from today.
Delivered, dated and signed in Nakuru on this 15th day of July 2016.
Radido Stephen
Judge
Appearances
For Applicant: Mr. Simiyu instructed by Simiyu & Co. Advocates
For Respondents: Mr. Kirui, Litigation Counsel, Office of the Hon. Attorney General
Court Assistant: Nixon