[2016] KEELRC 296 (KLR)
The court found that the applicant failed to demonstrate that the respondents, specifically the Chief of Defence Forces and the Army Commander, were the proper parties with a statutory duty to pay the decretal sum or comply with the court's decree. The applicant did not establish the necessary legal nexus between...
Source-derived case information.
- Citation
- [2016] KEELRC 296 (KLR)
- Parties
- Applicant: Republic; Respondent: Hon. Attorney General; Respondent: Chief of Defence Forces; Respondent: Army Commander Kenya Army; Applicant: David Wanyonyi
- 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 / Judgment
- Outcome
- motion dismissed with costs to the respondents
- Judges
- MSA Makhandia
- Legal Topics
- Judicial Review Remedies, Mandamus, Public Officer Liability, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Hon. Attorney General
Respondent
Chief of Defence Forces
Respondent
Army Commander Kenya Army
Respondent
David Wanyonyi
Applicant
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether an order of mandamus can issue to compel the respondents to pay the decretal sum to the applicant.
- 2 Whether the respondents are the proper parties against whom the order of mandamus can be issued.
- 3 Whether the applicant established a legal nexus between the respondents' statutory duties and compliance with the court decree.
Ratio Decidendi
The court found that the applicant failed to demonstrate that the respondents, specifically the Chief of Defence Forces and the Army Commander, were the proper parties with a statutory duty to pay the decretal sum or comply with the court's decree. The applicant did not establish the necessary legal nexus between the respondents' statutory functions and the obligation to satisfy the judgment. As such, the court held that an order of mandamus could not issue against parties who are not shown to have the statutory responsibility for the act sought to be compelled. The limb of the prayer seeking reinstatement was also found incompetent as it was not pleaded in the statement of facts....
Court Disposition
motion dismissed with costs to the respondents
Orders
- The motion is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
35 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 AN ORDER OF MANDAMUS
AND
IN THE MATTER OF NAKURU INDUSTRIAL CASE NO. 401 OF 2013
BETWEEN
REPUBLIC APPLICANT
VERSUS
HON. ATTORNEY GENERAL 1st RESPONDENT
CHIEF OF DEFENCE FORCES 2nd RESPONDENT
ARMY COMMANDER KENYA ARMY 3rd RESPONDENT
AND
DAVID WANYONYI SUBJECT
JUDGMENT
1. David Wanyonyi (ex parte applicant) filed a Motion under certificate of urgency on 26 July 2016 seeking an order
1. THAT this Honourable court be pleased to issue an order of Mandamus compelling and/or commanding the Respondents to pay to the subject the sum of Kshs 15,672,537 being the decretal amount in Industrial Cause No 403 of 2013, interest arising thereon at court rates from the 17th May 2013 up to date and/or in the alternative reinstate the subject back to Kenya Defence Forces.
3. The Court had earlier granted leave to the ex parte applicant to commence judicial review proceedings on 15 July 2016, after an initial application had been dismissed when the ex parte applicant’s advocate failed to attend Court to prosecute the same (the summons was reinstated after a formal application was filed and urged).
3. A brief background is that Ongaya J pronounced a judgment on 17 October 2014 in which the Court ordered that the Respondents do re-engage the ex parte applicant into the service of the Kenya Defence Forces or in the alternative retire him with full pension/benefits.
4. It appears that the Respondents failed to comply with the terms of the judgment hence the judicial review application.
5. The Court has duly considered all the material placed before it as well as the written submissions.
6. The Court has noted that the Statement of Facts filed together with the summons seeking leave did not have an alternative relief of reinstating the ex parte applicant back to the Kenya Defence Forces, and therefore that limb of the prayer is incompetent and cannot be granted.
7. As to the merits of the motion, the Co urt has reluctantly come to the conclusion that the motion must fail.
8. The conclusion is reached on the premise that none of the parties sought to be compelled have been shown to be the proper and correct party(ies) in respect of the statutory function sought to be performed.
9. It is doubtful in the mind of the Court whether the Chief of Defence Forces or the Army Commander act as accounting officers of the Kenya Defence Forces as distinct from their operational functions.
10. It was incumbent upon the ex parte applicant to show the legal nexus between compliance with the Court’s decree and the statutory duties of the Respondents, but he has dismally failed in that obligation.
11. The authorities cited by the ex parte applicant cannot help his case as they are clearly distinguishable on the basis of the correct and proper parties having been sued.
12. The motion is dismissed with costs to the Respondents.
Delivered, dated and signed in Nakuru on this 2nd day of November 2016.
Radido Stephen
Judge
Appearances
For ex parte applicant Mr. Simiyu instructed by Simiyu & Co. Advocates
For Respondents Mr. Kirui, Litigation Counsel, Office of the Attorney General
Court Assistant Nixon