https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2302

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT BUNGOMA JUDICIAL REVIEW NO. E002 OF 2026 IN THE MATTER OF JUDICIAL REVIEW ORDER OF MANDAMUS AND IN THE MATTER OF LAW REFORM ACT (cap 26) LAWS OF KENYA AS READ QITH ORDER 53 OF THE CIVIL PROCEDURE RULES LAWS OF KENYA AND IN THE MATTER OF EMPLOYMENT AND LABOUR RELATIONS COURT ACT AND IN THE MATTER OF JUDGMENT DELIVERED ON 29TH SEPTEMBER 2025 IN FAVOUR OF THE CLAIMANT AGAINST THE COUNTY GOVERNMENT OF BUNGOMA IN BUNGOMA ELRC CAUSE NO. EO14 OF 2024 – KENYA UNION OF PRE- PRIMARY EDUCATION TEACHERS –VERSUS- BUNGOMA COUNTY PUBLIC SERVICE BOARD AND COUNTY SECRETARY – BUNGOMA COUNTY GOVERNMENT AND IN THE MATTER OF SECTION 21 OF THE GOVERNMENT PROCEEDINGS ACT ELRC BUNGOMA JR NO. E002 OF 2026 JUDGMENT 1 | P A G E AND IN THE MATTER OF CERTIFICATE OF ORDER AGAINST GOVERNMENT DATED 22ND OCTOBER, 2025 AND DECREE DATED 7TH OCTOBER, 2025 BETWEEN REPUBLIC OF KENYA ………………………………. APPLICANT COUNTY SECRETARY, VERSUS BUNGOMA COUNTY GOVERNMENT…….....1ST RESPONDENT CHAIRMAN, BUNGOMA COUNTY PUBLIC SERVICE BOARD ……………..……. 2ND RESPONDENT CHIEF OFFICER, BUNGOMA COUNTY FINANCE DEPARTMENT……………………...3RD RESPONDENT DIRECTOR, HUMAN RESOURCE………..…. 4TH RESPONDENT AND KENYA UNION OF PRE-PRIMARY EDUCATION TEACHERS ………………EX-PARTE APPLICANT (BEFORE HON. JUSTICE DAVID NDERITU) JUDGMENT I. INTRODUCTION 1. In a Notice of Motion (the application) dated 29th January 2026 the Applicant (the ex-parte Applicant) is seeking for the following orders – 1. THAT an order of MANDAMUS directed to the ELRC BUNGOMA JR NO. E002 OF 2026 JUDGMENT 2 | P A G E Respondents, namely; the County Secretary – Bungoma County Govt, the Chairman-Bungoma County Public Service Board and Chief officer-Bungoma County Finance and Director, Human Resource, to commence deduction of union dues forthwith and pay the Ex-parte Applicant union dues from all employees who are members of the Applicant with effect from October 2025 to date. 2. THAT in default of (1) above, the Respondents, each, be committed to six months civil jail and a fine of Ksh.200,000 for contempt of court orders. 3. THAT the cost of this application be provided for with interest from the time of filing till settlement in full. 2. The application is expressed to be brought pursuant to leave granted by the court on 15th January 2026. 3. The application is based on the grounds stated on the face of it and supported with a statutory statement of facts and the verifying affidavit of Samuel A. Opiyo, the General Secretary of the Applicant, both dated 29th January 2026. 4. In response to the application, through Odero & Partners Advocates, the Respondents filed joint grounds of opposition dated 8th April 2026 and a replying affidavit sworn by Edward Oringe Waswa, the County Attorney, on 8th April 2026. ELRC BUNGOMA JR NO. E002 OF 2026 JUDGMENT 3 | P A G E 5. The application was canvassed by way of written submissions. Mr. Opiyo representing the Applicant filed written submissions dated 22nd May 2026 and Mr. Kipyegon, Counsel for the Respondents, filed written submissions dated 27th April 2026. II. EVIDENCE 6. In the statement of facts and the supporting affidavit, it is stated and deposed that in a judgment delivered on 29th September 2025 the court ordered the County Government of Bungoma to commence deduction of union dues in October 2025 from all members of the Union in its employ and remit the same to the Union. 7. It is deposed that a decree arising from the said judgment was extracted and served upon the Respondents on 16th October 2025. It is further deposed that a certificate of order against Government was issued and served upon the Respondents on 6th November 2025. 8. It is further deposed that notwithstanding the Applicant undertaking all the above in compliance with the law, the Respondents have failed, refused, and or neglected to comply with the said orders and decree. 9. A copy of the judgment, decree, and the certificate of order against the Government are annexed to the supporting affidavit. A copy of the order that granted the Applicant leave to file the application is also annexed. 10. It is on the basis of the foregoing that the Applicant is seeking for the ELRC BUNGOMA JR NO. E002 OF 2026 JUDGMENT 4 | P A G E orders set out in the introductory part of this ruling. 11. The replying affidavit by the County Attorney confirms that the Respondents are well aware of the judgment and decree in Bungoma ELRC No. E014 of 2024 as outlined by the Applicant and summarized in the foregoing paragraphs. 12. It is deposed that there are 141 employees of the County Government of Bungoma who are members of the Applicant but it is alleged that the Respondents had to go through a lengthy process of verification and adjustments before the deductions and remittances of union dues could be effected. It is deposed that the Respondents are intentional, ready, and willing to comply with the judgment bar the budgetary and procedural barriers that they have had to overcome. 13. It is pleaded that the Respondents need more time to complete the administrative steps to commence the deductions and remittances. It is further pleaded that the Respondents are not in willful contempt of the impugned court orders. The court is urged not to take the drastic action of citing the Respondents for contempt but rather give them time to comply. III. SUBMISSIONS 14. It is submitted for the Applicant that the replying affidavit by the Respondents confirms that they are aware of and fully understand the orders issued by the court in the impugned judgment. It is submitted ELRC BUNGOMA JR NO. E002 OF 2026 JUDGMENT 5 | P A G E that the deduction and remittance of union dues from the 141 members of the Applicant working for the County Government of Bungoma has been pending since 2023. It is further submitted that the Respondents have had more than adequate time to comply with the judgment and there is no reason(s) advanced at all as to why they should not be held in contempt and punished accordingly for their deliberate and willful failure to comply with the orders in the impugned judgment. 15. It is submitted that under Section 48 of the Labour Relations Act the Respondents had 30 days within which to commence the said deductions and remittances even without a compelling court order, from the date on which the check-off forms were submitted by the Applicant in 2023. It is submitted that the Applicant approached the court due to failure by the Respondents to follow the law and they have failed, refused, and or neglected to act even after the court issued the clear and unambiguous orders in the judgment. 16. It is further submitted that there is a deliberate “stiff-neck” attitude by the Respondents to deny the employees their constitutional and statutory rights to join a trade union of their choice and take part in the lawful activities of such union(s) as enshrined in Articles 36(1) & 41(2)(c) of the Constitution. 17. It is further submitted that the grounds of opposition and the replying ELRC BUNGOMA JR NO. E002 OF 2026 JUDGMENT 6 | P A G E affidavit by the Respondents raise no defence or explanation for their failure to comply with the lawful orders of the court issued in the judgment that have neither been reviewed nor appealed. 18. It is submitted that the Applicant has complied with all legal procedures precedent to filing of the instant application. It is submitted that there is a lawful judgment, a decree issued, a certificate of order against the Government issued, and the applicant complied with Section 21 of the Government Proceedings Act and Order 53 of the Civil Procedure Rules, before the filing of the instant application. 19. It is further submitted that the Respondents have neither disputed the knowledge nor service of all the above. In support of the foregoing submissions, the Applicant cited Republic V Secretary, County Government of Meru & Another (2023) eKLR. The court is urged to find and hold that there is no reason(s) advanced for the Respondents’ failure to comply with the orders of the court, other than their deliberate failure, refusal, and neglect to obey the same. 20. In response to the submissions made for the Applicant, Counsel for the Respondents opposed the application on four grounds. Firstly, it is stated that the application does not meet the threshold for issuance of an order of mandamus as there is no established statutory duty that the Respondents have failed or refused to execute. Secondly, it is ELRC BUNGOMA JR NO. E002 OF 2026 JUDGMENT 7 | P A G E submitted that the Respondents have not failed or refused to act but the delay has been occasioned by complex administrative and budgetary constrains that have not yet been reconciled. Thirdly, it is submitted that in the circumstances, it would be too draconian, harsh, and hasty for the court to allow the prayer for contempt. Fourthly, it is submitted that the Respondents should not be held liable for what is supposed to be implemented by a public institution, the County Government of Bungoma. 21. Arising from the foregoing, Counsel for the Respondents submitted on the following issues – i. Whether the Ex Parte Applicant has satisfied the legal threshold for the issuance of an order of mandamus. ii. Whether the application is premature in light of the administrative, payroll, budgetary and statutory framework governing compliance by a county government. iii. Whether the prayers seeking committal to civil jail, fine and contempt-related sanctions are legally competent and ripe for determination. iv. Whether the Ex parte Applicant has improperly personalized a public/statutory obligation contrary to section 21 of the Government Proceedings Act and the applicable public finance framework. ELRC BUNGOMA JR NO. E002 OF 2026 JUDGMENT 8 | P A G E v. Who should bear the costs of the application. 22. On the first issue, it is submitted that the Respondents are not personally liable under Section 21(4) of the Government Proceedings Act and hence the Applicant should pursue the employer. It is submitted that the replying affidavit has explained the delay in detail and the circumstances are beyond the Respondents. 23. On the second issue, it is submitted that the provisions of Sections 102 & 104 of the Public Finance Management Act bind the County Government of Bungoma and the named Respondents and it is for that reason that it has taken long for the decree to be complied with. It is submitted that the non-compliance is not willful but constrained by the foregoing circumstances. 24. On the third issue, it is submitted that contempt proceedings are quasi-judicial with a standard of proof beyond balance of probabilities but below that of beyond reasonable doubts. Counsel cited Mutitika V Baharini Farm Limited (1985) KLR 229 in buttressing the foregoing. It is further reiterated that the Respondents are not in willful contempt of the judgment and the decree and orders therein but the non-compliance has been occasioned by the circumstances and reasons alluded to in the foregoing paragraphs. 25. Counsel faulted the Applicant for bringing the application for mandamus and contempt in the same motion. It is submitted that the ELRC BUNGOMA JR NO. E002 OF 2026 JUDGMENT 9 | P A G E Applicant ought to have applied and obtained an order of mandamus before seeking order for contempt. It is therefore submitted that the application is premature in terms of the same seeking for orders for contempt for orders of mandamus that have not been issued. 26. In regard to the fourth issue, it is submitted that the application is defective for seeking to punish the Respondents for a public obligation that is not personal to them. It is submitted that Section 21(4) of Government Proceedings Act and Section of 133(1) of the County Governments Act protect officers against personal liability for public/institutional duties and debts. 27. The court is urged to dismiss the application with costs. IV. ANALYSIS & DETERMINATION 28. The facts as set out by the Applicant have not been disputed by the Respondents and hence there is no need of re-stating or evaluating the same as the court has confirmed the same based on the documentary evidence availed alongside the supporting affidavit and the annexures thereto and the statement of facts in support of the application. 29. In the circumstances, the court shall consider the opposition to the application by the Respondents through the lenses that the factual basis of the application is as presented by the Applicant. It is not denied that the Respondents are the accounting officers of the ELRC BUNGOMA JR NO. E002 OF 2026 JUDGMENT 10 | P A G E County Government of Bungoma, in the positions stated in the proceedings. It is further not denied that the impugned judgment was delivered and a decree issued against the said County Government as pleaded by the Applicant and that the same has neither been settled, reviewed, stayed, nor appealed. Further, no offer or proposal has been submitted by the Respondents on how the decree shall be settled. 30. The factual and legal position is also ascertained that there is no stay of execution issued either by this court or the Court of Appeal. In those circumstances, one would have expected the Respondents to either make proposals on how the amounts due shall be remitted or offer to settle the same without any further delay. A decree flows from a lawful judgment and is a compelling order directing a judgment-debtor to oblige and comply therewith. Strictly speaking, failure to settle or comply with a decree is in contempt of court that is actionable upon an application made. 31. The court has gone through the application, the grounds of opposition and the replying affidavit, and the written submissions by and or for both sides. In the considered view of the court, no lawful or reasonable explanation has been offered as to why the judgment and the decree have not been settled and the court finds no difficulties in ordering the Respondents to act on the decree and obey ELRC BUNGOMA JR NO. E002 OF 2026 JUDGMENT 11 | P A G E and settle the same. 32. One of the fundamental obligations of an employer is to pay salaries and wages to the employees for services rendered as and when the same falls due and payable – see Section 28 of the Employment Act. The decree alluded to herein arises from the failure by the County Government to simply deduct and remit lawful union dues from the 141 employees who are members of the Applicant. That is a simple administrative action that does not involve budgetary and or other approvals so long as salaries are being paid in accordance with the law cited above. The failure by the Respondents to enforce the decree is unacceptable conduct from any employer and the court shall not countenance or condone such evidently illegal and unlawful misconduct. 33. In the circumstances, the court has no difficulties in allowing the first prayer in the application. The Respondents are ordered to remit union dues in regard to the 141 employee-members of the Applicant due and payable as from 30th October 2025 to date within the next 60 days of this order. The Respondents shall thereafter deduct and remit such union dues on monthly basis without fail. 34. On the second request for a finding that the Respondents are held in contempt of court for their failure to comply with the impugned judgment and the decree, the court shall not pronounce itself on that ELRC BUNGOMA JR NO. E002 OF 2026 JUDGMENT 12 | P A G E request as the order above has provided a latitude for the Respondents to enforce and comply with the judgment and the decree. In case the Respondents fail to comply, the Applicants shall have a right to come back to court for contempt proceedings or any other relief that it may deem fit. 35. However, this is not to say that there are no grounds for holding the Respondents to be in contempt of the orders in the impugned judgment and decree. The court is, in the spirit of harmonious industrial peace, allowing the Respondents some latitude and time to do that which they ought to have done. The Respondents must now move with haste in full apprehension that they are trending on thin ice in that regard and that unless they comply time and luck shall certainly wear out. 36. For all the foregoing reasons, the court finds and holds that the application herein has merits and the same is allowed as per the orders below. V. ORDERS 37. The court finds and holds that the application herein has merits and makes the following orders – a) That an order of mandamus be and is hereby issued compelling the Respondents to commence deduction and remittance of union dues from all the 141 employees who ELRC BUNGOMA JR NO. E002 OF 2026 JUDGMENT 13 | P A G E are members of the Applicant. b) The Respondents shall deduct and remit the said union dues from October 2025 (now past), as ordered in the impugned judgment, and pay the same to the designated account of the Applicant within 60 days of this ruling. c) In default of (a) & (b) the Applicant shall be at liberty to move the court as appropriate, including but not limited to the filing of contempt proceedings. d) Costs of the application to the Applicant. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 30TH DAY OF JULY 2026. …………………… DAVID NDERITU JUDGE ELRC BUNGOMA JR NO. E002 OF 2026 JUDGMENT 14 | P A G E