https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2174

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI JUDICIAL REVIEW APPLICATION NO E085 OF 2025 *(Before Hon. Justice Dr. Jacob Gakeri)* NAOMI WAMBUI MAINA ……………………………...………. APPLICANT VERSUS AMOS OMUGA, DIRECTOR LEGAL, NATIONAL POLICE SERVICE …………….……….... 1ST RESPONDENT LESASUIYAN RICHARD, DIRECTOR ADMINISTRATION, PLANNING AND FINANCE, NATIONAL POLICE SERVICE …………………….… 2ND RESPONDENT DOUGLAS KANJA, INSPECTOR GENERAL OF THE POLICE …………………….……….………… 3RD RESPONDENT ELIUD KINUTHIA, CHAIRPERSON NATIONAL POLICE SERVICE COMMISSION …… 4TH RESPONDENT PETER LELEY CHIEF EXECUTIVE OFFICER NATIONAL POLICE SERVICE COMMISSION …... 5TH RESPONDENT RULING 1. The Applicant has proffered this Application premised on Order 53 Rule 3 of the Civil procedure Rules, and Section 8 and 9 of the Law Reform Act. The Applicant seeks orders THAT: 2. The Honourable Judge do issue an Order of *Mandamus* compelling the Respondents to pay to the Applicant the sum of Kenya Shillings Four Million, Three Hundred and Sixty-three Thousand, Four Hundred and Twenty-five (Kshs. 4,363,425.00) together with the accrued interest, being the outstanding decretal amount in Nairobi Employment and Labour Relations Court Petition No. 189 of 2022. 3. This Honourable Court be pleased to give such further orders and directions as it may deem fit and just to grant. 4. The costs of this application be provided for. 5. The Application is grounded on the Applicant’s Statutory Statement and Verifying Affidavit and the grounds that: Judgement was entered in favour of the Applicant against the National Police Service and the National Police Service Commission in Nairobi Employment and Labour Relations Court Petition No. 189 of 2022, for a sum of Kenya shillings four million, three hundred and sixty-three thousand, four hundred and twenty-five (Kshs. 4,363,425.00); despite demand, the sum remains unpaid: the Respondents have statutory authority under Section 21 of the Government Proceedings Act to ensure prompt payment of lawful debt owed by the Government; the failure to satisfy the decretal sum constitutes an unreasonable and unlawful refusal to obey a lawful order, necessitating judicial intervention. 6. The Applicant obtained leave on 22nd of October 2025, to institute this Judicial Review proceedings vide Miscellaneous Application number ELRCMISC/E212/2025; and the Applicant has no other adequate remedy to enforce the Judgement save for an order of *Mandamus*. Submissions 1. It is the Applicant’s submission that the Respondents were served with the decree, certificate and taxation together with a letter demanding for the same. It was submitted that the commission in its letter dated 11th February 2025 intimated that it had requisitioned the amount at the National Treasury, in line with its budget cycle Financial Year 2025/2026. Relying on Sections 21 and 25 of the Government Proceedings Act, it was submitted that the law prohibited execution by attachment of government property. Reliance was also placed on the decision in Kisya Investments Ltd vs Attorney General & Another [2005] 1KLR 74 to reinforce the argument that the only available remedy in law is by way of an order of *mandamus.* Reliance was further placed on the decision in Republic v Attorney General Ex-parte James Alfred Koroso JR 44/2012. 2. Counsel added that the Respondents had not disputed the costs as taxed and that they did acknowledge indebtedness due to budgetary constraints. The Court was urged to safeguard the Applicant’s rights to access justice and protection of property espoused under Article 48 and 40 of the Constitution respectively. It was contended that the Respondents are estopped from claiming lack of money as they ought to have followed procedure and sought funds. The Court was therefore urged to grant the order. 3. The 4th and 5th Respondents in their submissions raised the issue on whether the Court should issue an order compelling immediate payment. It was argued that *mandamus* is a discretionary remedy that a Court may refuse to grant even in the existence of requisite grounds. In support, reliance was placed on the decision in Apotex Inc vs Canada (Attorney General) as restated in Republic vs County Secretary – Nairobi City County & another Ex- Parte Tom Ojienda & Associates [2019] eKLR. 4. Counsel submitted that the Respondents’ financial operations were governed by sections 44, 45 and 68 of the Public Finance Management Act 2012, and Article 206 of the Constitution, which provide that public funds can only be expended upon parliamentary appropriation and within budgetary limits; thus, could not incur obligations outside such allocation. 5. Submitting that a public body could not be compelled to expend funds that had been lawfully appropriated, reliance was placed on a catena of authorities including, Republic v Principal Secretary, Ministry of Defence ex parte George Kariuki Waithaka [2019] KEHC 10383 KLR. It was argued that the inability to immediately satisfy the amount did amount to refusal or disobedience of court order. Counsel added that the engagement between the Respondents and the Applicant and her lawyers evidenced good faith and willingness to pay on the part of the Respondent. Counsel added that the Commission was ready and willing to settle the debt once funds were allocated. Counsel urged the Court to dismiss the application with costs to the Respondent. Analysis 1. It is not in dispute that the Respondents owe the Applicant the amount in question. What is in dispute is the timeline within which payment ought to be effected. 2. The Applicant cited refusal by the Respondents to pay the demanded amount. Although the Applicant did not provide evidence of service as per the provisions of *Section 21* of the Government Proceedings Act, the Respondent admitted proper service but blamed the delay on unavailability of funds. 3. In determining this case the court is guided by the decision in Republic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another [2018] KEHC 9433 (KLR) cited by the Respondents in their submissions, where the Court held as follows: *“30. Clearly, there is a public duty on the part of the Respondents to act. They do not deny this. The duty is owed to the ex parte applicant. This has not been denied. Instead the Respondents have advanced grounds which are of no help to them in this application. They confused this application with an appeal or an application for Review under the Civil Procedure Rules.* *31. The applicant has satisfied all the conditions precedent. For example, they obtained the requisite Certificate of Order as the law demands. The applicants demanded the payment. This is not denied. There is failure to comply despite reasonable notice to perform. In fact the refusal to perform is express and evident. It has not been denied. There is no other adequate remedy available to the Applicants. It is not possible to execute against the Government. The order sought is of practical effect. There is no equitable bar to the relief sought. The Respondents did not even allege there is such a bar. It is also evident that on a balance of convenience, Mandamus should lie. There is nothing to show otherwise.* *32. On the test of what constitutes a reasonable notice before Mandamus can issue, the Certificate of Order against the Government is dated 13th February 2017. It was served upon the Respondents. There are demand letters dated 15th June 2010, 16th March 2017, 19th April 2017, 8th June 2017 and 8th July 2017. No payment was made. The application seeking leave was filed on 6th October 2017 and the substantive application was filed on 8th November 2017. There is nothing to show that the Respondent's ever appealed against the decision rendered by Angawa J. I find that there has been reasonable notice to comply and that there has been wilful refusal to comply.* *33. The other test is "an express refusal, or an implied refusal through unreasonable delay." First, as I have concluded above, "unreasonable delay' has been established in the present case. Secondly, an express refusal or even implied refusal to pay has also been established. Mandamus can only issue where it is clear that there is wilful refusal or implied and or unreasonable delay. These have been proved in the present case.* *34. Applying the above tests to the facts and circumstances of this case, I find and hold that the applicant has satisfied all the conditions enumerated in the above cited case. It follows that there is a basis at all for this Court to grant the order of Mandamus.* 1. The Respondents cited unavailability of funds and relied on their letter of 11th February 2025 which indicated that they had requisitioned for the money. In addition, they pleaded good faith indicating that they have been in constant communication with the Applicant. I note that over a year has lapsed since the said letter and the funds ought to have been released with the budget for the financial year commencing July 2025, if at all they were requisitioned for. The failure to settle the sum therefore indicates an implied refusal by the Respondents to settle. 2. On whether or not this Court can issue the order sought on account of unavailability of funds, I agree with the holding in Republic v County Government of Meru & 4 others; Misheck (Ex parte Applicant) [2024] KEELRC 2760 (KLR) where the Court held: *“… I appreciate the explanation given by the respondents that they were prevented from settling the decree by factors beyond their control. However, the decree of the court is not a suggestion but a command to be complied with by the person to whom it is directed. The respondents have had sufficient time to mobilize funds for settling the decretal sum but they have persisted in their default.”* 1. Consequently, the court finds merit in the Application and orders as follows: 2. *An order of Mandamus be and is hereby issued to compel the Respondents to pay the ex parte Applicant the aggregate sum of Kshs. 4,363,425.00 being the decretal sum together with the taxed costs and interest thereon at court rates from date of judgement until payment in full within sixty (60) days.* 3. *The Applicant is also awarded cost of this Application.* DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 28th JULY, 2026. DR. JACOB GAKERI JUDGE ORDER 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 affordable resolution of civil disputes. DR. JACOB GAKERI JUDGE