https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2144

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **JUDICIAL REVIEW NO. E007 OF 2026** IN THE MATTER OF AN APPLICATION BY; FREDRICK MAROA MOHERAI FOR LEAVE TO APPLY FOR ORDERS OF JUDICIAL REVIEW IN THE NATURE OF MANDAMUS **AND** IN THE MATTER OF THE MIGORI COUNTY SECRETARY **AND** IN THE MATTER OF THE GOVERNOR OF MIGORI COUNTY **AND** IN THE MATTER OF THE SECRETARY OF THE COUNTY PUBLIC SERVICЕ BOARD OF MIGORI **BETWEEN** REPUBLIC………………………….……………………………**APPLICANT** **VERSUS** THE MIGORI COUNTY SECRETARY…..……..……...**1ST RESPONDENT** THE GOVERNOR MIGORI COUNTY…………….….**2ND RESPONDENT** THE SECRETARY OF THE COUNTY PUBLIС SERVICE BOARD OF MIGORI........................**3RD RESPONDENT** **AND** FREDRICK MAROA MOHERAI...........................**EX PARTE APPLICANT** **RULING** 1. Vide a Chamber Summons dated 9th April 2026 the Ex-Parte Applicant seeks leave to apply for judicial review orders of *mandamus* compelling the Respondents to pay Kshs. 1,683,360/-, being the decretal sum, together with interest at 14% per annum until payment in full, and Kshs. 200,000/- being the costs awarded in **Kisumu ELRC Miscellaneous Application No. E115 of 2024, Fredrick Maroa Moherai *v* The Migori County Secretary, The Governor of Migori County *&* another**. He also seeks costs of the application. 2. The application is supported by the statutory statement and the verifying affidavit attached thereto. The Ex Parte Applicant avers that, in its Ruling delivered on 29th October 2024 in **Kisumu ELRC Miscellaneous Application No. E115 of 2024**, this Court adopted the decision of the Public Service Commission in PSC County Appeal No. 100 of 2022, thereby awarding him the sums now sought. He states that he subsequently extracted a decree dated 16th March 2026 and served it upon the Respondents. He avers that despite service of the decree and several reminders; the Respondents have failed and/or refused to satisfy the decretal amount. Consequently, he urges the Court to grant the orders sought in the interests of justice. 3. The Respondents oppose the application through the Grounds of Opposition dated 5th June 2026. They contend, at the outset, that the application is incompetent because it improperly identifies the Republic, rather than the Ex Parte Applicant, as the applicant. They further argue that the proceedings have been instituted against the wrong parties, as none of the named Respondents is the accounting officer upon whom the statutory duty to satisfy court decrees rests. They also assert that the decree in **Kisumu ELRC Miscellaneous Application No. E115 of 2024** did not award the monetary sum claimed. Instead, they assert that the Court merely adopted the Public Service Commission's decision granting the Ex Parte Applicant one month's salary in lieu of notice, the equivalent of four months' salary as compensation for unfair termination, and service gratuity for the period served in accordance with the appointment letter dated 19th June 2019, none of which was quantified. Additionally, they contend that the Ex Parte Applicant has not demonstrated compliance with section 21 of the Government Proceedings Act by obtaining and serving a Certificate of Order against the Government. They therefore urge the Court to dismiss the application for being incompetent and an abuse of the court process. 4. The application was canvassed by way of written submissions. Ex-Parte Applicant's Submissions 1. The Ex-Parte Applicant identifies the following issues for determination: * + 1. Whether the Applicant's application is competent notwithstanding the objections raised as to its form and intitulement; 2. Whether the County Secretary, County Government of Migori is a proper Respondent against whom an order of *mandamus* may issue; 3. Whether the Judgment and Decree in ELRC Miscellaneous Application No. E115 of 2024, adopting the decision of the Public Service Commission, created an enforceable legal obligation capable of being enforced through judicial review proceedings; and 4. Whether the Applicant has established the legal threshold for the grant of leave to apply for an order of *mandamus*. 2. On the competence of the application, the Ex-Parte Applicant submits that the Respondents' objection challenging its competence on account of intitulement is without merit. He asserts that judicial review proceedings are *sui generis*, governed by Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, and that procedural requirements should not override the Court's constitutional obligation to determine disputes on their merits. He relies on Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act, submitting that courts should administer justice without undue regard to procedural technicalities. He further relies on **Raila Odinga *&* 5 others *v* Independent Electoral and Boundaries Commission *&* 3 others [2013] eKLR**, where the Supreme Court underscored that Article 159(2)(d) is intended to prevent deserving litigants from being denied substantive justice on account of procedural lapses. He also cites **Nicholas Kiptoo Arap Korir Salat *v* IEBC *&* 7 others [2014] eKLR**, in which it was observed that procedural rules are handmaidens of justice and should not be applied mechanically where no prejudice has been occasioned. The Ex-Parte Applicant maintains that the Respondent has neither demonstrated nor alleged any prejudice arising from the manner in which the proceedings were instituted, having fully participated by filing grounds of opposition and written submissions. He distinguishes the decision of **Farmers Bus Service *&* others *v* Transport Licensing Appeal Tribunal [1959] EA 779**, relied upon by the Respondents contending that it was decided before the promulgation of the Constitution, 2010 and should not be applied in isolation from the constitutional imperative favouring substantive justice. He therefore urges the Court to dismiss the Respondents' objection based on the form of the Chamber Summons. 3. On the second issue, the Ex-parte Applicant submits that the County Secretary is the proper Respondent against whom an order of *mandamus* may issue. He points out that the County Secretary was sued both before the Public Service Commission and in ELRC Miscellaneous Application No. E115 of 2024. Consequently, the County Secretary cannot now deny being a proper party to the enforcement proceedings. The Applicant relies on Section 44 of the County Governments Act, for the propositions that the County Secretary, as the head of the county public service and chief administrative officer, bears the statutory responsibility of ensuring compliance with court orders. He cites **Republic *v* Kenya National Examinations Council ex parte Gathenji *&* others [1997] eKLR**, where the Court of Appeal held that *mandamus* issues to compel the performance of a statutory public duty that has not been performed. He also relies on **Republic *v* County Secretary, Nairobi City County *&* another ex parte Wachira Nderitu Ngugi *&* Co. Advocates [2016] eKLR**, where the Court held that in instances in which a decree has been issued against a County Government *mandamus* properly lies against the County Secretary and other responsible public officials charged with ensuring compliance with court decrees. 4. On the third issue the Ex-parte Applicant submits that the judgment in ELRC Miscellaneous Application No. E115 of 2024, which adopted the Public Service Commission's decision as the judgment of the Court, created a valid and enforceable legal obligation. He asserts that once adopted, the Commission's decision ceased to be a mere administrative determination and acquired the force and effect of a judgment of a competent court. He contends that judicial review proceedings for *mandamus* are not appellate proceedings and therefore the Court ought not to interrogate the correctness or sufficiency of the underlying judgment. Citing **Republic *v* Kenya National Examinations Council ex parte Gathenji *&* others [1997] eKLR**, he submits that *mandamus* is available to compel the performance of a statutory duty that has become due but remains unperformed. The Ex-Parte Applicant further submits that the Respondent's assertion that there is no ascertainable decretal sum confuses entitlement with quantification. He submits that the Public Service Commission expressly awarded one months' salary in lieu of notice, four months' salary compensation for unfair termination, service gratuity and a certificate of service, which are mandatory remedial orders whose adoption rendered them enforceable. He maintains that if at all the Respondent disputed the computation of the award, the proper recourse would have been to seek review, clarification or to lodge an appeal before the Employment and Labour Relations Court rather than to refuse to comply with the judgment. In support, he relies on **Teachers Service Commission *v* Kenya National Union of Teachers *&* 3 others [2015] eKLR**, where the Court of Appeal reaffirmed that court orders remain binding until set aside, and on **Hadkinson *v* Hadkinson [1952] 2 All ER 567**, in which the Court stated that every person against whom a court order is made is obliged to obey it unless and until it is discharged. 5. Concerning whether he has met the threshold for grant of leave, the Ex-parte Applicant submits that he has. He points to the fact that, a valid judgment exists, a decree was extracted and served on the Respondents, the Respondents have persistently failed to comply despite knowledge of the decree, and there is no alternative remedy since execution cannot issue against Government entities. He maintains that at the leave stage the court is only required to determine whether an arguable case has been disclosed and not to delve into the merits of the intended judicial review application. He relies on **Republic *v* County Council of Kwale *&* another ex parte Kondo *&* 57 others [1998] KEHC 2**, where the Court held that leave serves as a filter against frivolous claims and should be granted where an arguable case exists. He also cites **Mirugi Kariuki *v* Attorney General [1990] KLR 8**, in which the Court held that leave should ordinarily issue where a prima facie case worthy of judicial consideration is disclosed. Additional reliance is placed on the case of **Republic *v* Permanent Secretary, Ministry of State for Provincial Administration *&* Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR**, where the Court held that *mandamus* is the only effective remedy available to a decree holder where Government fails to satisfy a judgment, **Republic *v* Attorney General *&* another ex parte James Alfred Koroso [2013] eKLR**, in which the Court observed that Government should not rely on statutory immunity from execution to evade compliance with lawful court orders, and **Republic *v* County Secretary, Nairobi City County *&* another ex parte Wachira Nderitu Ngugi *&* Co. Advocates [2016] eKLR**, which affirmed that *mandamus* is the appropriate mechanism for enforcing decrees against County Governments. 6. Turning to the authorities relied upon by the Respondents, the Ex-parte Applicant submits that they do not advance their cause. Regarding **Republic *v* Kenya National Examinations Council ex parte Gathenji *&* others [1997] eKLR**, the Applicant contends that the authority in fact supports his case by affirming that *mandamus* compels the performance of a statutory duty where a public body has failed to act. As for **Five Star Agencies Ltd *v* National Land Commission *&* another [2024] eKLR**, the Ex-parte Applicant submits that it merely emphasizes compliance with Section 21 of the Government Proceedings Act and does not authorize public bodies to ignore subsisting court judgments. He asserts that any issues concerning compliance with the statutory requirements or computation of the decretal amount are matters for the substantive motion and do not negate the existence of an arguable case at the leave stage. In view of the foregoing the Ex-parte Applicant urges the court to allow the application. Respondents' Submissions 1. From the outset the Respondents submit the application is premature and legally untenable because it seeks enforcement of unliquidated and unascertained amounts. They assert that the Public Service Commission did not quantify the awards it made, neither is the Applicant's monthly salary nor the contents of the appointment letter before court. Furthermore, they submit that the decree did not award costs as alluded to by the Applicant. In view of the foregoing, they emphasize that the lump sum of Kshs. 1,683,360/-, interest at 14% per annum and Kshs. 200,000/- costs have no evidential basis and cannot be recovered through judicial review proceedings. 2. The Respondents further submit that the Chamber Summons is incompetent because it has been wrongly intituled. They point to the fact that the proceedings were commenced in the name of the Republic at the leave stage instead of the Applicant's own name. In support of this proposition, they rely on **Farmers Bus Service *&* Others *v* Transport Licensing Appeal Tribunal [1959] EA 779**, as approved in **Republic *v* Minister for Finance *&* Commissioner of Insurance ex parte Charles Lutta Kasamani t/a Kassamani *&* Company Advocates [2006] eKLR**, where the Court held that proceedings should only be intituled in the name of the Republic after leave has been granted and the substantive Notice of Motion is filed. 3. Concerning the parties sued, the Respondents submit that the 1st and 2nd Respondents have been improperly joined because the decree was issued solely against the 3rd Respondent. they assert that neither the County Secretary nor the Governor owes the Applicant any statutory duty capable of enforcement by an order of *mandamus*. In support of this argument, they rely on **Republic *v* Kenya National Examinations Council ex parte Geoffrey Gathenji Njoroge *&* 9 others [1997] eKLR**, where the Court held that *mandamus* issues only to compel the performance of a public duty imposed by law upon a person or body. Additionally, the Respondents submit that the application offends the provisions of the Public Finance Management Act, 2012 because none of the named Respondents is the accounting officer responsible for payment of public funds. They contend that under section 149(1) of the Act, any order compelling payment from public funds must be directed against the relevant accounting officer and not against political or administrative office holders. They also maintain that the Applicant has failed to comply with section 21 of the Government Proceedings Act, which requires a successful litigant to obtain and serve a Certificate of Order against the Government before seeking enforcement through *mandamus*. They rely on **Five Star Agencies-Ro Limited *v* National Land Commission *&* another, Civil Appeal No. E290 of 2023 [2024] eKLR**, particularly paragraph 95, where the Court of Appeal affirmed that compliance with section 21 is a mandatory condition precedent to the grant of an order of *mandamus* against a public body. Consequently, they urge the court to dismiss the application due to the fact that it is anchored on wrongful fictitious and misleading statements of fact. Disposition 1. The decision of the Public Service Commission was that the Applicant herein was to get, *inter alia*, one month's salary in lieu of notice, 4 months salary as compensation for the unfair termination of employment before lapse of the contractual period, service gratuity for the period served in accordance with the letter of appointment dated 10th June 2019. This decision of the Public Service Board was adopted as an order of the Court and there has been demonstrably no effort to effect the payments subject of the decision. The writ of *mandamus* issues where a public official declines to act as required to in law. 2. An order of *mandamus* may be sought in instances where there is non-compliance with an order or edict of court. In the case of **Republic *v* Permanent Secretary, Ministry of State for Provincial Administration *&* Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR**, the Court held that *mandamus* is the only effective remedy available to a decree holder where Government fails to satisfy a judgment. I am in total agreement and therefore hold that the application for leave to apply for orders of *mandamus* lies. Of note is the fact that the leave so granted is to compel the payment of the decreed sum. I grant the application which must of necessity be filed within 21 days of today failing which the leave granted will automatically lapse. There will be no order as to costs on this motion. It is so ordered. **Dated and delivered at Kisumu this 23rd day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**