Republic v Nairobi City County Government's Executive Committee Member, Finance & 2 others; Alex & 27 others (Ex parte) (Petition E061 of 2025) [2026] KEELRC 1402 (KLR) (15 May 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI IN THE JUDICIAL REVIEW DIVISION PETITION NO. E061 OF 2025 IN THE MATTER OF: APPLICATION FOR JUDICIAL REVIEW ORDER OF MANDAMUS AND IN THE MATTER OF: SECTIONS 8 & 9 OF THE LAW REFORM ACT CAP 26, LAWS OF KENYA AND IN THE MATTER OF: CIVIL PROCEDURE ACT CAP 21 LAWS OF KENYA AND IN THE MATTER OF: ORDER 53 RULES 1(1), 3(1) AND 4 OF THE CIVIL PROCEDURE RULES 2010. BETWEEN REPUBLIC ………………………………………………………………………APPLICANT VERSUS NAIROBI CITY COUNTY GOVERNMENT'S EXECUTIVE COMMITTEE MEMBER, FINANCE.......................................................... 1ST RESPONDENT NAIROBI CITY COUNTY GOVERNMENT'S CHIEF, FINANCE...........2ND RESPONDENT NAIROBI CITY COUNTY GOVERNMENT…………………………… 3RD RESPONDENT Ex Parte FLAVIAN WABUYABO ALEX & 27 OTHERS CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. Pursuant to leave of court, the Ex Parte Applicant filed the substantive application by way of Notice of Motion under Order 53 of the Civil Procedure Rules, dated 7th October, 2025 seeking the following for ORDERS: 2. THAT an Order of Mandamus be and is hereby issued to compel the Nairobi City County Government's Executive Committee Member, Finance, and or the Chief Officer of Finance to pay the Ex Parte Applicants: a) Kshs. 6,337,800/= being the decretal amount in ELRC 509 of 2023 Wabuyabo Flavian Alex & 27 Others V Nairobi City County Government & 3 Others. 1. Interest on Kshs. 6,337,800/= at 12% p.a from 9th April 2025 until payment in full. 2. The costs of Kshs.409,668.77 being the certified costs thereon together with interest at 12% per Annum from 9th April, 2025 until full payment. 3. THAT the costs of and incidental to the Application for Leave to file this Judicial Review Application and costs for this Application be awarded to the Applicant and be assessed by this Honourable Court. Grounds of the Application 1. On 6th October, 2025, the Ex Parte Applicants got leave to file this Judicial Review Application for an order of mandamus. 2. Since 9th April, 2025, when the Ex Parte Applicants got a judgement against the Nairobi City County Government, the Nairobi City County Government has not settled the decretal amount of Kshs. 6,337,800/- plus costs assessed at Kshs. 409,668.77/= and interest on both at 12% per annum running from 9th April, 2025 until full payment. 3. Neither has the Nairobi City County Government indicated if and when it intends to settle the decretal amount and costs. 4. The application was supported by the affidavit of Wabuyabo Flavian Alex dated where he annexed and marked as- WFA-01 a copy of the letter of authority dated 29th November, 2023, WFA-02 is a copy of the leave granted on 06th October, 2023,WFA-03 a copy of the decree dated 9/4/2025, WFA-04 a copy of the Certificate of costs dated 4th September, 2025, WFA-05 a copу of the Certificate of Order against Government dated 9th September, 2025 and WFA-06 a copy of the letter dated 10th September, 2025, forwarding the Certificate of order against the government, certificate of costs and decree to Nairobi City County Government. 5. The disposal of the application delayed as parties attempted to settle the matter out of court , but these attempts were not fruitful. The judgment of the court dated 9th April 2025 remains unsatisfied. 6. The respondent filed notice of appointment of advocates but no response was filed. The judicial review application is thus unopposed. DECISION 1. The Respondent is the government, and thus execution cannot apply. The exparte Applicants have properly invoked order 53 Civil Procedure Rules and sections 8 and 9 of the Law Reform Act to seek a judicial review order of mandamus. The remedy sought is a Judicial Review Order of Mandamus. In defining the scope 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 Ex Parte Applicants have satisfied the court that they qualify for an order of mandamus by producing the Decree, certificate of costs and certificate of order against the government dated 9th September 2025. The documents were served on the Respondent on 10th September 2025. There is no settlement. In the end the judicial review order sought of Mandamus is justified. The Court allows the application as follows:- 2. The court is pleased to issue an order of Mandamus to compel the Nairobi City County Government Executive Committee, Member Finance to pay the Exparte Applicants Kshs.6,377,800 being the decretal sum and Kshs.409,668.77 being taxed costs and interest at 12% per annum for date of judgment until payment in full under judgment in ELRC 509 of 2023 Wabuyabo Flavian Alex & 27 others vs. Nairobi City County Government & 3 others. 3. The Exparte Applicants are awarded costs of the application. 4. It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH MAY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Applicant: Rakwen Respondent: Waweru