https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1719

Republic v County Secretary, County Government of Kisumu & 2 others; Otieno, Ragot & Co. Advocates (Ex parte Applicant) (Judicial Review E001 of 2026) [2026] KEELRC 1719 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1719 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Judicial Review E001 of 2026 Nzioki wa Makau, J June 23, 2026 IN THE MATTER OF AN APPLICATION BY OTIENO, RAGOT & CO. ADVOCATES AND IN THE MATTER OF AN APPLICATION FOR ORDERS FOR JUDICIAL REVIEW BY WAY OF MANDAMUS AND IN THE MATTER OF SECTIONS 2, 103, 147, 148, 153 & 154 OF THE PUBLIC FINANCE MANAGEMENT ACT, 2012 AND IN THE MATTER OF SECTION 44 & 45 OF THE COUNTY GOVERNMENTS ACT, 2012 AND IN THE MATTER OF GOVERNMENT PROCEEDINGS ACT, CHAPTER 40, LAWS OF Kenya AND IN THE MATTER OF ARTICLES 10, 23, 41, 201 & 207 OF THE CONSTITUTION OF KENYA Between Republic Applicant and The County Secretary, County Government of Kisumu 1st Respondent The County Executive Member For Finance, County Government Of Kisumu 2nd Respondent The County Government Of Kisumu 3rd Respondent and Otieno, Ragot & Co. Advocates Ex parte Applicant Ruling 1.Pursuant to leave granted on 2nd October 2025 and the subsequent extension of time granted on 21st April 2026, the Ex-parte Applicant filed the substantive Notice of Motion dated 21st April 2026 seeking an order of mandamus to compel the Respondents to satisfy the decree arising from Kisumu ELRC Miscellaneous Cause No. E086 of 2023. Specifically, the Ex-parte Applicant seeks payment of Kshs. 783,922/- together with interest at 14% per annum, costs of Kshs. 104,420/-, and the costs of these judicial review proceedings. 2.The application is premised on the Chamber Summons dated 20th August 2025, the Statement of Facts, and the Verifying Affidavit filed in support thereof. The Ex-parte Applicant avers that it acted for the 3rd Respondent in Kisumu ELRC Cause No. 75 of 2013 (formerly Nairobi ELRC Cause No. 546 of 2010) but was not paid its professional fees. As a result, it instituted Kisumu ELRC Miscellaneous Cause No. E086 of 2023 and, on 25th June 2024, obtained judgment against the 3rd Respondent in the sum of Kshs. 783,922/- together with costs assessed at Kshs. 101,420/-. It contends that despite service of the decree, the Certificate of Order Against the Government issued in compliance with Order 29 Rule 3 of the Civil Procedure Rules as read with section 21 of the Government Proceedings Act, as well as several reminders, the decretal sum remains unpaid. According to the Ex-parte Applicant, the 1st Respondent, as the County Secretary, is responsible for identifying matters for consideration by the County Executive Committee and communicating its decisions for implementation pursuant to section 44(3)(b) and (c) of the County Governments Act. The Ex-parte Applicant further contends that the 2nd Respondent, by virtue of section 103(3), sections 148, 151, 152, 153 and 156 of the Public Finance Management Act, as read together with Articles 201 and 207 of the Constitution, bears overall responsibility for the management of the County Treasury and supervision of county accounting officers. It is therefore the Ex-parte Applicant’s position that the Respondents are collectively under a legal obligation to facilitate satisfaction of the decree and that their continued failure to do so warrants the issuance of an order of mandamus in order to uphold the rule of law. 3.On 21st April 2026, when the Court granted the Ex-parte Applicant a seven-day extension within which to file the substantive motion. Counsel for the Respondents indicated that they would require time to file a response, whereupon the Court directed that any response be filed within fourteen days of service of the substantive application. The matter was thereafter fixed for mention on 25th May 2026 to confirm compliance. On that date, counsel for the Ex-parte Applicant informed the Court that the application had been duly served and that no response had been filed. Consequently, the Court barred the Respondents from filing any further documents without leave. Ex-Parte Applicant’s Submissions 4.In its written submissions, the Ex-parte Applicant contends that it has satisfied all the conditions necessary for the grant of an order of mandamus as set out in Republic v County Secretary – Nairobi City County & another Ex Parte Tom Ojienda & Associates [2019] KESC 10912 (KLR). In particular, it asserts that there exists a public legal duty owed to it by the Respondents; that it has a clear legal right to the performance of that duty; that prior demand for payment was made; that there has been unreasonable delay and refusal to satisfy the decree; that no alternative remedy is available; that the order sought will serve a practical purpose; that no equitable bar exists against the grant of the order; and that the balance of convenience favours the relief sought. 5.The Ex-parte Applicant highlights the fact it fully complied with the requirements of section 21 of the Government Proceedings Act by serving the decree, certificate of costs, and certificate of order against the Government. In that regard, it relies on the documents appearing at pages 30 and 31 of the bundle annexed to the application dated 10th February 2026. It also points to correspondence dated 11th December 2024, asserting that despite the lapse of over two years since service of the relevant documents, no payment has been forthcoming. 6.The Ex-parte Applicant asserts that the 1st and 2nd Respondents bear statutory responsibility for the management of the County Government’s finances, including the budgeting for and settlement of lawful court decrees. It therefore asserts that they are under a public duty to ensure payment of the decretal sum owed by the 3rd Respondent and that an order of mandamus is necessary to compel the discharge of that duty. Reliance is placed on the decision in the case of Republic v County Secretary, County Government of Migori & 2 others Ex Parte Okongo Wandago & Company Advocates [2021] eKLR, where the court adopted the holding in Republic v Kenya National Examinations Council ex parte Gathenji & others (1997) eKLR, that mandamus is a remedy of an extensive remedial nature issued to compel the performance of a public duty where a legal right exists and no equally convenient, beneficial or effective remedy is available. It also references Republic v Attorney General & another Ex Parte Ongata Works Limited [2016] eKLR, where Odunga J. (as he then was), relying on R v Dudsheath Ex Parte Meredith [1950] 2 All ER 741, held:“It is important to remember that "mandamus" is neither a writ of course nor a writ of right, but that it will be granted if the duty is in the nature of a public duty, and specially affects the rights of an individual, provided there is no more appropriate remedy..." 7.Accordingly, the Ex-Parte Applicant urges the court to grant the order of mandamus sought with costs. 8.No submissions were filed by the Respondents. Disposition 9.The order of mandamus is an extraordinary power reposed in a court. Often, it is said to be an extraordinary judicial command directing a government official, public agency, or lower court to perform a mandatory, non-discretionary duty required by law. Ordinarily, the order is issued only when all other legal remedies have failed. The Respondents have failed, refused and/or neglected to effect the orders of the Court in Kisumu ELRC Miscellaneous Cause No. E086 of 2023. 10.The Ex Parte Applicant having obtained judgment against the 3rd Respondent in the sum of Kshs. 783,922/- together with costs assessed at Kshs. 101,420/- is entitled to obtain payment of the same. It has been proved to the Court that despite service of the decree as well as the Certificate of Order Against the Government which had been issued to the Ex Parte Applicant in compliance with Order 29 Rule 3 of the Civil Procedure Rules as read with section 21 of the Government Proceedings Act, the sum is unpaid. Despite the several reminders from the Ex Parte Applicant, the decretal sum remains unpaid to date which means there is basis for the grant of mandamus. The Court having been persuaded it is proper to issue the order does hereby issue an order of mandamus directing the Respondents to jointly and/or severally immediately pay the sum of Kshs. 783,922/- plus costs in the amount of Kshs. 101,420/- to the Ex Parte Applicant. Payment is directed to be made within 21 days of today failing which there would be additional sanctions.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 23RD DAY OF JUNE 2026NZIOKI wa MAKAU, MCIArb.JUDGE