https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1411

Republic v Principal Secretary, Ministry of Defence & 3 others; Wanyonyi (Ex parte Applicant) (Judicial Review Application E026 of 2025) [2026] KEELRC 1411 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1411 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review Application E026 of 2025 JW Keli, J May 15, 2026 IN THE MATTER OF: ORDER 53 OF THE CIVIL PROCEDURE RULES 2010 IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS IN THE MATTER OF: THE ENFORCEMENT OF THE JUDGMENT AND DECREE OF THE ELRC AT NAKURU CAUSE NO. 401 OF 2013; DAVID WANYONYI V CDF, COMMANDER KENYA ARMY & THE HON. ATTORNEY GENERAL, DELIVERED ON 17TH OCTOBER 2014 IN THE MATTER OF: SECTIONS 8 & 9 OF THE LAW REFORM ACT IN THE MATTER OF: THE FAIR ADMINSTRATIONS ACT Between Republic Applicant and Principal Secretary, Ministry of Defence 1st Respondent Chief ofthe Defence Forces 2nd Respondent Commander Kenya Army 3rd Respondent Hon Attorney General 4th Respondent and David Wanyonyi Ex parte Applicant Ruling 1.The Exparte Applicant, pursuant to leave of the court to file judicial review proceedings filed a substantive Notice of Motion dated 16th April 2025 seeking for the following Orders:-1)This court be pleased to grant the Applicant leave to institute Judicial Review application seeking for orders of this court to wit-1.1An order of mandamus directed to the 1st Respondent compelling him to settle the Decretal amount of Kshs. 6,755,033.28 plus interest and costs as Ordered and Decreed by the Employment and Labour Relations Court at Nakuru in Cause Number 401 of 2013; David Wanyonyi Versus Hon. Attorney General, Chief of Defence Force and Commander Kenya Army.1.2An order of mandamus directed at the 1st, 2nd and 3rd Respondents compelling them to enrol and admit the Applicant into the pension managed and run by the Kenya Defence Forces in compliance with the Judgment of the Court and ensure that he receives his monthly pension dues as Ordered by the Court.2)THAT costs of this Application do abide the determination of the substantive Judicial Review Application. 2.The Ex parte Applicant in support of the Judicial Review application filed his supporting affidavit dated 13th June 2025, Judgment from the Industrial Court at Nakuru, Cause No. 401 of 2003, the decree and related proceedings all emanating from Nakuru ELRC. 3.The Respondent filed a replying affidavit by Grace Ajierh dated 16th December 2025 and further filed a Notice of Preliminary Objection raising 2 grounds:-1.The Application is subjudice.2.The application is abuse of the process of the Honourable court. 4.The Respondent produced an Order by justice Radido Stephen (as he then was), where the Ex parte Applicant was granted leave to file a Notice of Motion for an order of mandamus to enforce his judgment at Nakuru ELRC. 5.The court found it unusually strange that the Exparte Applicant filed the instant proceedings in Nairobi to enforce a decision at Nakuru. I will come back to this issue later. 6.The court had a duty to determine in the first instance whether the instant application is subjudice as raised in the preliminary objection. The Respondent submits that pursuant to the leave (granted by Justice Radido), the Exparte Applicant filed a substantive Notice of Motion dated 26th July 2026 in Nakuru ELRC Judicial Review Application No. 3 of 2015, Republic vs. Hon. AG, Chief of Reference Forces & Army Commander Kenya Army. That despite the pendency of the Notice of Motion, the Ex parte Applicant filed the instant application, offending the principle of subjudice. 7.The Ex parte Applicant, in response to the preliminary objection filed a replying affidavit dated 6th February 2026, where, among others, he asserted that the matter was not subjudice as the alleged Notice of Motion application was determined vide judgement dated 2nd November 2016 by Justice Radido Stephen sitting at Nakuru ELRC(exhibit DW-1). 8.I agreed with the Ex parte Applicant that the instant application was not subjudice in the circumstances. The court noted the Notice of Motion was dismissed for incompetence in terms of the parties cited for the order of mandamus. 9.I dismiss the preliminary objection for lack of merit. The court noted the instant Notice of Motion seeks to enforce a decision in Nakuru ELRC. There is no justification why enforcement is not before the trial court at Nakuru ELRC. 10.I find it is bad practice and a risk of duplication of Orders, to enforce a decision in a different station, outside the trial court, without justification. The matter is transferred to Nakuru ELRC for further proceedings before the trial court. Mention before Duty Judge ELRC Nakuru on 28th May 2026 for further directions. 11.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH MAY, 2026.JEMIMAH KELI,JUDGE.IN THE PRESENCE OFC/A OtienoExparte Applicant- Kengere h/b MwangiRespondent-absent