https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1344

Mathenge (Suing on behalf of the Estate of Daniel Kihara Mathenge - Deceased) v Principal Secretary, Ministry of Agriculture & Livestock Development & another (Judicial Review Cause E003 of 2026) [2026] KEELRC 1344 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1344 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Judicial Review Cause E003 of 2026 SC Rutto, J May 15, 2026 JUDICIAL REVIEW CAUSE NO. E003 OF 2026 IN THE MATTER OF AN APPLICATION FOR MANDAMUS BY JORAM KIHARA MATHENGE AND IN THE MATTER OF THE PRINCIPAL SECRETARY, MINISTRY OF AGRICULTURE & LIVESTOCK DEVELOPMENT AND IN THE MATTER OF HONOURABLE ATTORNEY GENERAL Between Joram Kihara Mathenge (Suing on behalf of the Estate Of Daniel Kihara Mathenge - Deceased) Applicant and Principal Secretary, Ministry of Agriculture & Livestock Development 1st Respondent Honourable Attorney General 2nd Respondent Judgment 1.Before this Court for determination is a substantive Notice of Motion dated 13th February 2026, through which the Applicant seeks the following orders: 1.That an order for Mandamus be and is hereby issued compelling and directing the 1st Respondent to forthwith disburse the death benefits and all other related benefits payable in respect of the late Daniel Kiragu Mathenge (deceased) who died on the 4th April 2019, to the lawful and/or nominated beneficiary thereof. 2.Costs of this Application be provided for. 2.The Motion is premised on the grounds set out in the Statement of Facts and Supporting Affidavit sworn on 13th February 2026 by Joram Kihara Mathenge, the Applicant herein. Mr. Mathenge deposes that he is the administrator of the estate of the late Daniel Kiragu Mathenge, who was a civil servant employed under the Ministry of Agriculture and Livestock Development, the 1st Respondent herein. 3.He avers that upon the demise of the deceased, the beneficiaries of the estate became entitled to the deceased’s death gratuity benefits. He further states that the subordinate court in Nyeri Succession Cause No. 327 of 2023 distributed the said benefits through a Certificate of Confirmation of Grant dated 19th September 2024. 4.Mr. Mathenge further avers that he thereafter presented the Certificate of Confirmation of Grant together with other requisite documents to the offices of the 1st Respondent seeking release of the said benefits. 5.According to Mr. Mathenge, the 1st Respondent confirmed, through a letter dated 21st July 2022 from the Isiolo County Government, where the deceased had been seconded, that the benefits ought to be released. Despite this, the 1st Respondent has allegedly failed and/or declined to release the said benefits. 6.The Respondents did not file any response to the Notice of Motion, which was consequently canvassed by way of written submissions. Submissions 7.It was submitted on behalf of the Applicant that, by virtue of the deceased’s employment as a public officer, the provisions of Section 5 of the Pension Act are applicable to him. The Applicant further submitted that, as the employer of the deceased, the 1st Respondent bears a statutory obligation to process and facilitate payment of the deceased’s gratuity and other terminal dues. 8.The Applicant further submitted that he is the duly appointed administrator of the estate of the deceased and, by reason of that appointment, is clothed with the requisite legal capacity to manage, claim, and recover all assets and entitlements belonging to the deceased’s estate, including terminal benefits and gratuity. 9.In support of the foregoing submissions, reliance was placed on the decision in Republic vs National Water Conservation & Pipeline Corporation & 11 others, Geoffrey Gathenji & others, Civil Appeal No. 266 of 1996 (1997) eKLR. Analysis and Determination 10.At the outset, I find it necessary to address the issue regarding the intitulment of the substantive Notice of Motion. I say so because, in judicial review proceedings, once leave is granted by the Court, the Republic becomes the Applicant, while the party who had initially moved the Court through the Chamber Summons assumes the position of the Ex parte Applicant. Consequently, the substantive Motion ought to be instituted in the name of the Republic rather than in the name of the individual seeking relief against the impugned decision or action. 11.This position was well articulated by Ringera J (as he then was) in Jotham Mulati Welamondi vs The Electoral Commission of Kenya Bungoma [2002] eKLR, where the learned Judge expressed himself as follows: -“In FARMERS BUS SERVICE AND OTHERS V THE TRANSPORT LICENSING APPEAL TRIBUNAL (1959) E.A. 779, the East African Court of Appeal held that prerogative orders are issued in the name of the crown and applications for such orders must be correctly intituled. On Kenya's assumption of Republican status on 12th December 1964, the place of the crown in all legal proceedings was taken by the Republic. Accordingly, the orders of Certiorari, Mandamus or Prohibition now issue in the name of the Republic and applications therefor are made in the name of the Republic at the instance of the person affected by the action or omission in issue. In the premises, the proper format of the substantive motion for Mandamus would have been"republic................... ApplicantVThe Electoral Commission of Kenya.............respondentEx Parte Jotham Mulati Welamondi" 12.In the present case, the substantive Notice of Motion was not instituted in the name of the Republic, but rather in the name of the Applicant in the Ex Parte Chamber Summons. It therefore follows that the instant Notice of Motion is improperly intituled. 13.Nevertheless, I am guided by the holding of the Court of Appeal in the case of Republic vs Charles Lutta Kasamani & another ex parte Minister for Finance & Commissioner of Insurance as Licencing and Regulating Officers [2006] eKLR, where it was held as follows: -“Suffice it to say that a defect in form in the title or heading of an appeal, or a misjoinder or non-joinder of parties are irregularities that do not go to the substance of the appeal and are curable by amendment. This Court said so in Dipak Panachod Shah & Another Vs. The Resident Magistrate Nairobi and the Attorney General - Civil Application NAI. 81/00 (UR).Is the form of title to the appeal as adopted by the Attorney General in this matter defective or irregular? We think not, as we find that it substantially complies with the guidelines set out by this Court.” 14.The foregoing determination was also consistent with the holding of the Court in the case of Farmers Bus Service and Others vs The Transport Licensing Appeal Tribunal [1959] E.A. 779. 15.Further, Article 159(2)(d) of the Constitution enjoins this Court to administer justice without undue regard to procedural technicalities. In that regard, it is the view of this Court that the defect in the form of the substantive Notice of Motion is not fatal, as it does not go to the substance of the Application. 16.In the premises, I shall proceed to determine the substantive Motion on its merits. 17.Having considered the substantive Notice of Motion together with the submissions made on behalf of the Applicant, it is this Court’s view that the singular issue arising for determination is whether the Applicant has satisfied the threshold for the grant of an order of mandamus as prayed. 18.The Court of Appeal in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR while citing with approval Halsbury’s Laws of England, 4th Edition, Vol. 7 at paragraph 89, stated as follows regarding the nature and scope of an order of mandamus: -“The order of mandamus is of most extensive remedial nature and is in form, of a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual." At paragraph 90 headed “the mandate” it is stated:“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.” 19.Through the present substantive Notice of Motion, the Applicant seeks an order compelling the 1st Respondent to release and disburse the death gratuity and related benefits payable to the estate of the late Daniel Kiragu Mathenge (deceased). 20.As stated herein, the Respondents did not file any response to the Notice of Motion. Consequently, there is no dispute that the deceased was a public officer serving under the Ministry of Agriculture and Livestock Development, the 1st Respondent herein and that he passed away while still in service. 21.Similarly, it is uncontested that the death gratuity payable in respect of the deceased has not been released to his lawful beneficiaries as stipulated under the Pensions Act. Further, no reasonable or lawful explanation has been tendered by the 1st Respondent for its failure to process and pay the said benefits to the beneficiaries of the deceased. 22.In view of the foregoing, the Court is persuaded that the Applicant has established a proper basis for the grant of an order of mandamus. Accordingly, the Notice of Motion dated 13th February 2026 is hereby allowed, and an order of mandamus is issued compelling the 1st Respondent to release and pay to the estate of the late Daniel Kiragu Mathenge the death gratuity together with all attendant benefits due and payable. 23.Given that these proceedings were necessitated by the inaction on the part of the 1st Respondent, it shall bear the costs of the suit. DATED, SIGNED AND DELIVERED AT NYERI THIS 15TH DAY OF MAY, 2026.………………………………STELLA RUTTOJUDGEIn the presence of:For the Applicant Mr. GatotoFor the Respondents No appearanceCourt assistant NdatiORDERIn 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 had 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 affordable resolution of civil disputes.………………………………STELLA RUTTOJUDGE