https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2334

REPUBLIC OF KENYA EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROВІ ELRCJR NO.E006 OF 2026 JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION IN THE MАTTER OF: AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS AND IN THE MАTTER OF: EXECUTION OF THE CERTIFICATE OF ORDER ISSUED ON 30TH APRIL, 2025 BETWEEN REPUBLIC ………………………………………………………………………………………………………………APPLICANT -VERSUS- THE COUNTY EXECUTIVE COMMITTEE MEMBER, FINANCE & ECONOMIC AFFAIRS, NAIROBI CITY COUNTY. ……………………………………………….1ST RESPONDENT COUNTY SECRETARY, NAIROBІ CITY COUNTY……………………………………….……...2ND RESPONDENT CHIEF OFFICER, FINANCE/COUNTY TREASURER, NAIROBІ CITY COUNTY……3RD RESPONDENT PROF. TOM OJIENDA & ASSOCIATES………………………………………………………....EXPARTE APPLICANT CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Exparte Applicant, pursuant to leave of the court issued under Order 53, Rule 3 of the Civil Procedure Rules 2010, filed substantive Notice of Motion dated 22nd January 2026 seeking the following orders- 1). THAT the Honourable Court be pleased to issue an Order of Mandamus compelling the Respondents to pay to the Applicant forthwith and without delahe decretal sum delineated hereunder together with the accrued interest until payment in full, that is to say particulars- a) Decretal Amount Kshs. 2,422,628.10/= b) Interest at 14% per annum as from 26/02/2025 to 25/09/2025Kshs. 196,066.94/= c) Court collection fees Ksh.1,500/= Total Amount Kshs. 2,620,195.04/= 2). THAT in default, Notice to Show Cause do issue against the Respondents to show cause why they should not be cited for being in contempt of Court Orders. 3. THAT the costs of this Application be borne by the Respondents. Grounds of the application 1. That the Applicant filed an Advocate-Client Bill of Costs dated 29th January 2024, against Nairobi City County Government which Bill arose out of a parent file being ELRC Cause No. 402 of 2017; Michael Gichuhi Ngari Vs Nairobi City County. The Bill was taxed vide the Ruling dated 30th July 2024 at Kshs. 2,422,628.10/= and a Certificate of Taxation issued on 13th September 2024 to this effect. 1. That at the time of Taxation, the Nairobi City County was well aware of the existence of the said Bill as they were duly served with the same. Due to lack of payment by the Respondents, the Applicant, in an Application dated 30th January 2025, sought that the Court be pleased to enter Judgement for the Applicant against the Respondents for the sum of Kshs. 2,422,628.10/= together with interest. 2. That subsequently, the Application was heard and the Court proceeded to enter Judgment and issued a Decree on 24th April 2025 for the payment of Kshs. 2,422,628.10/= together with interest from 26th February 2025 till payment in full. The Court also issued a Certificate of Order against Government on 25th September 2025 for the payment of Kshs. 2,620,195.04/= being the decretal sum of Kshs. 2,422,628.10/= plus interest of Kshs. 196,066.94/= and Court collection fees of Kshs 1,500/= as tabulated below: PARTICULARS - a) Decretal Amount-Kshs.2,422,628.10/= b) Interest at 14% per annum as from 26/02/2025 to 25/09/2025 Kshs.196,066.94/= c) Court collection fees Ksh 1,500.00/= Total Amount Kshs. 2,620,195.04/= 1. That the Applicant proceeded to serve the Respondents with reminders dated 28th October 2025 and 12th November 2025 requiring the Respondents to settle the decretal sum of Kshs. 2,620,195.04/= to no avail and further filed an Affidavit of Service dated 28th November 2025 depicting proof of service. 2. That the Respondents, despite being aware of the sums due and owing to the Applicant for legal services rendered, have to date failed and/or refused to settle the decretal sums. The said sums have been due and owing for years now and the Applicant is left with no other recourse other than to seek refuge from this Honourable Court, hoping that it will be reimbursed for legal services rendered to the Respondents. 3. That the Ex Parte Applicant filed an Application dated 8th December 2025 seeking leave of the Honourable Court to file an Application for Mandamus. Leave and leave was granted on 15th December 2025. THAT the Applicant is therefore seeking an Order of Mandamus to compel the Respondents to settle the amounts owed, that is Kshs. 2,620,195.04/= 1. The Ex Parte Applicant in support of the judicial review application annexed the taxation ruling dated 30th July 2024, certificate of taxation dated 13th September 2024 for Kshs. 2,422,628.10 , Decree issued by Justice Baari on the 26th February 2025, where the certificate of taxation was adopted as judgment of the court with interest at court rate until payment of the certificate amount, being Kshs. 2,422,628.10 , certificate of order against the Government for the total sum of Kshs. 2,620,195.04 (The decretal sum plus interest of Kshs. 196,066.94 and collection fee of Kshs, 1500). The Ex Parte Applicant also annexed demand letters issued to the respondents. 2. The application was opposed via a replying affidavit of Aisha Abdi who stated she was the County Chief Officer Finance of Nairobi City County, sworn on 13th April 2026 as follows- 3. That the Nairobi City County, is a public institution governed by the provisions of the Public Finance Management Act, 2012 ("PFMA"), in all matters pertaining to the management of public finances and expenditure. 4. That part IV of the Public Finance Management Act provides that any financial commitments or payments, including the settlement of court decrees and debts by a County Government, must be subjected to the elaborate budgetary process established by law. 5. That the following critical steps must be undertaken in the County's budgetary process: a) Identification of Priorities: Listing all development plans and pending financial obligations, including short-term and long-term projects. b) Priority Setting: Establishing financial and economic priorities for the County over the medium term. c) Revenue and Expenditure Estimation: Preparing a detailed forecast of County Government revenues and expenditures for the relevant financial year. d) Fiscal Strategy Paper: Adoption of the County Fiscal Strategy Paper, which outlines the allocation of resources and fiscal responsibilities. e) Budget Preparation and Approval: Drafting budget estimates and submitting them to the County Assembly for deliberation and approval. f) Legislation: Enacting necessary laws to implement the County's approved budget. g) Implementation: Executing the budget and ensuring proper accounting, monitoring, and evaluation of all expenditures, including settlement of debts. 6. That the non-payment of the decretal sum arises NOT from willful refusal or neglect by the Respondents but rather due to the complexities and procedural requirements inherent in the public financial management system, as outlined above. 7. That despite the Respondents genuine intention to settle the decretal sum, the multiplicity of stakeholders, government departments, and statutory requirements has caused delays in the payment process. 8. That I am informed by counsel on record, whose advice I verily believe to be true, that public funds can only be expended in accordance with the law and the approved budgetary framework. 9. That I further state that steps have already been initiated to include the Applicant's decretal sum in the upcoming budget cycle. However, this process requires time and must adhere to the statutory timelines and frameworks. 10. That therefore humbly request this Honorable Court to exercise its discretion and grant the Respondents sufficient time to ensure compliance with the law and facilitate the payment of the decretal sum through the next budgetary allocation. 11. That the Respondents are committed to satisfying the debt and respectfully requests the Court to consider the public interest and statutory constraints under which the Respondent operates. 12. The application was canvassed by way of written submissions. The issue for determination is whether the application is merited. 1. The instant application seeks a judicial review order of Mandamus. The application is further premised under sections 8 and 9 of the Law Reform Act, to wit –‘8. Orders of mandamus, prohibition and certiorari substituted for writs (1) The High Court shall not, whether in the exercise of its civil or criminal jurisdiction, issue any of the prerogative writs of *mandamus*, prohibition or *certiorari*. (2) In any case in which the High Court in England is, by virtue of the provisions of section 7 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, (1 and 2, Geo. 6, c. 63) of the United Kingdom empowered to make an order of *mandamus*, prohibition or *certiorari*, the High Court shall have power to make a like order. (3) No return shall be made to any such order, and no pleadings in prohibition shall be allowed, but the order shall be final, subject to the right of appeal therefrom conferred by subsection (5) of this section. (4) In any written law, references to any writ of *mandamus*, prohibition or *certiorari* shall be construed as references to the corresponding order, and references to the issue or award of any such writ shall be construed as references to the making of the corresponding order. 9. Rules of court (1) Any power to make rules of court to provide for any matters relating to the procedure of civil courts shall include power to make rules of court— (a) prescribing the procedure and the fees payable on documents filed or issued in cases where an order of *mandamus*, prohibition or *certiorari* is sought; (b) requiring, except in such cases as may be specified in the rules, that leave shall be obtained before an application is made for any such order; (c) requiring that, where leave is obtained, no relief shall be granted and no ground relied upon, except with the leave of the court, other than the relief and grounds specified when the application for leave was made. (2) Subject to the provisions of subsection (3), rules made under subsection (1) may prescribe that applications for an order of *mandamus*, prohibition or *certiorari* shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates.’’ 1. The applicable rules are under Order 53 of the Civil Procedure Rules, which states as follows:- ‘1. Applications for mandamus, prohibition and certiorari to be made only with leave [Order 53, rule 1] (1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule. …3. Application to be by notice of motion [Order 53, rule 3] (1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing. (2) The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the court and on all parties to the proceedings….’’ The court finds the Ex Parte Applicant has complied with the relevant procedure for recovery against the government. 22. The court finds that there is no dispute as to the decretal sum stated in the certificate of Order against the Government. The court noted the respondent's defence for non-payment was related to budget procedures. What is before the court is an application seeking an Order of Mandamus compelling the Respondents to pay the Applicant forthwith and without delay the decretal sum delineated hereunder, together with the accrued interest until payment in full, that is to say, PARTICULARS. a) Decretal Amount Kshs. 2,422,628.10/= b) Interest at 14% per annum as from 26/02/2025 to 25/09/2025Kshs. 196,066.94/= c) Court collection fees Ksh.1,500/= Total Amount Kshs. 2,620,195.04/= and in default Notice to Show Cause is issued against the Respondents to show cause why they should not be cited for being in contempt of Court Orders. 1. The court granted leave for an order of Mandamus to be sought under Order 53 of the Civil Procedure Rules. The Ex Parte Applicant in support of the judicial review application annexed the taxation ruling against the respondent dated 30th July 2024, certificate of taxation dated 13th September 2024 for Kshs. 2,422,628.10, Decree issued by Justice Baari on the 26th February 2025, where the certificate of taxation was adopted as judgment of the court with interest at court rate until payment of the certificate amount, being Kshs. 2,422,628.10, certificate of order against the government for the total sum of Kshs. 2,620,195.04 (The decretal sum plus interest of Kshs. 196,066.94 and collection fee of Kshs, 1500). The Ex Parte Applicant also annexed demand letters issued to the respondents. The Respondents have failed to remit the amounts contained in the Certificate of Order against Government to the Ex-parte Applicant. The regular execution proceedings are not allowed against the government, and the process of recovery or enforcement of judgment is under the Government Proceedings Act. Section 21 of the Government Proceedings Act as follows- ‘21. Satisfaction of orders against the Government (1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order: Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.(2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.(3)If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon: Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.(4)Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.(5)This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party’ I find the ex parte applicant is in compliance with the procedure. 1. I am persuaded to find that the Ex parte Applicant has complied with the conditions under section 21 of the Government Proceedings Act. The remedy sought is of Judicial Review Order of Mandamus. In defining the scope of the Order of Mandamus the Court of Appeal in Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) stated- ‘24.The next issue we must deal with is this: What is the scope and efficacy of an Order of Mandamus? Once again we turn to Halsbury’s Law of England, 4th Edition Volume 1 at page 111 from paragraph 89. That learned treatise says:-“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. 25.What do these principles mean? They mean that an order of mandamus will compel 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. We can do no better than give examples.’’ The court applied the foregoing decision in the determination of the application. 1. The respondents have failed to comply and satisfy the judgment of the court and Decree as stated in the certificate of order against the government for a total sum of Kshs. 2620195.04 (decretal sum plus interest of Kshs. 196,066.94 and collection fee of Kshs. 1500.) The defence has not impugned the sought sum. There is no valid reason for denying the order of Mandamus as a matter of doubt. The judicial review application is held as merited and is allowed. 2. The Honourable Court is pleased to issue an Order of Mandamus compelling the Respondents to pay to the Applicant forthwith and without delay the decretal sum delineated hereunder together with the accrued interest until payment in full, that is to say- a) Decretal Amount Kshs. 2,422,628.10/= b) Interest at 14% per annum as from 26/02/2025 to 25/09/2025Kshs. 196,066.94/= c) Court collection fees Ksh.1,500/= Total Amount Kshs. 2,620,195.04/= Mention on the 30th September 2026 to confirm compliance and, in default, Notice to Show Cause to issue against the Respondents to show cause why they should not be cited for being in contempt of Court Orders. 1. The cost of this Application shall be borne by the Respondents. 2. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JULY, 2026. JEMIMAH KELI, JUDGE IN THE PRESENCE OF: Court Assistant: Otieno Exparte Applicant – Ms Ojienda h/b Prof. Ojienda Respondents- Ms Ambasa