https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2288

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC JUDICIAL REVIEW NO. E007 OF 2026 (Formerly NAIROBI JUDICIAL REVIEW APPLICATION NO. E026 OF 2025 (Before Hon. Lady Justice Anna Ngibuini Mwaure) REPUBLIC …………………………………………..…. APPLICANT VERSUS PRINCIPAL SECRETARY, MINISTRY OF DEFENCE……………….……… 1ST RESPONDENT CHIEF OF DEFENCE FORCE……………...…..2ND RESPONDENT ARMY COMMANDER KENYA ARMY…..…...3RD RESPONDENT HON. ATTORNEY GENERAL……………….. 4TH RESPONDENT AND DAVID WANYONYI…………………..… EX-PARTE APPLICANT RULING Introduction 1. The ex-parte Applicant filed a Notice of Motion dated 12th June 2025 seeking orders that: 1. An order of mandamus does issue directed to the 1st Respondent compelling him to settle the decretal amount of JUD. REVIEW NO. E007 OF 2026 RULING 1 | P A G E 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 Forces and Commander Kenya Army. 2. An 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 and ensure that he receives his monthly pension dues as ordered by the court. 3. The costs of this application be awarded to the ex-parte applicant. 2. The application is brought under Article 23(3)(f) of the Constitution, Order 53 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010, and sections 8 and 9 of the Law Reform Act, section 7 and 11 of the Fair Administrative Action Act. Applicant’s supporting affidavit Ex-parte 3. The application is supported by the affidavit of the ex-parte Applicant dated even date as the application. JUD. REVIEW NO. E007 OF 2026 RULING 2 | P A G E 4. The ex-parte Applicant depones that he was employed by the Kenya Army from 1997 until his termination on 17th May 2013, which he successfully challenged in ELRC Cause No. 401 of 2013, where judgment was delivered in his favour on 17th October 2014. 5. The ex-parte Applicant depones that the court ordered either his reinstatement or retirement with full pension benefits, but the Respondents failed to comply. Subsequent rulings, including that of Lady Justice Monica Mbaru on 6th February 2020, assessed his dues at Kshs.973,144.80 plus a monthly pension of Kshs.14,810.02, together with costs. A Certificate of Costs and a Certificate of Order against the Government were duly issued, yet despite repeated letters and reminders, the Respondents have refused to settle the decretal amount or enrol him into the pension scheme. 6. The ex-parte Applicant contends that the Respondents, being public officers and members of the Defence Council, are under a statutory and constitutional duty to implement the Court’s orders, and their continued refusal is deliberate, malicious, and amounts to dereliction of duty. JUD. REVIEW NO. E007 OF 2026 RULING 3 | P A G E 7. The ex-parte Applicant therefore seeks an order of mandamus to compel compliance and enforcement of the judgment and decree. Respondents’ replying affidavit 8. The Respondent opposed the application vide a replying affidavit sworn by Grace Ajierh, a State officer in charge of litigation at the Ministry of Defence, dated 26th September 2025. 9. The Respondents argued that the ex-parte applicant’s motion dated 12th June 2025 and affidavit sworn on 13th June 2025 was fatally defective for being filed out of time. 10. The Respondents relied on section 9(1) and (2) of the Law Reform Act, which prescribes that applications for judicial review orders of mandamus, prohibition, or certiorari must be made within six months from the date the cause of action arose. 11.The Respondents emphasized that the cause of action arose about eleven years earlier, rendering the application time-barred. 12.The Respondents further aver that delays were occasioned by the applicant’s slow clearance from service, and that payment of pensions is the JUD. REVIEW NO. E007 OF 2026 RULING 4 | P A G E preserve of the National Treasury rather than the Respondents. 13.The Respondents also noted that the Ministry of Defence has faced budgetary cuts and competing demands from multiple decree holders, which has hindered its ability to settle pending bills. 14.Nonetheless, the Respondents acknowledge their legal obligations under the judgment and have initiated steps to include the decretal sum in the upcoming financial year, contending that entertaining the application would waste judicial time in light of these ongoing efforts. 15.Parties canvassed the application by way of written submissions. Ex-parte 16. applicant’s submissions The ex-parte Applicant emphasized that the Employment and Labour Relations Court has jurisdiction under Article 162(2)(a) of the Constitution, section 12 of the ELRC Act, and Order 53 of the Civil Procedure Rules to issue prerogative remedies such as mandamus where public officers fail to perform clear statutory duties. He relied on United States International University (Usiu v General; Outa & Another JUD. REVIEW NO. E007 OF 2026 RULING 5 | P A G E (Interested Parties) [2012] KEHC 5516 (KLR) where Justice Majanja affirmed the exclusive jurisdiction of the Industrial Court over employment matters, and Said v Principal Secretary Ministry of Defence [2024] KEELRC 2432 (KLR), where mandamus was issued to enforce reinstatement and benefits. 17.The ex-parte Applicant further relied on the case of Republic v County Secretary, Government of Nairobi County & 5 others; Faram East Africa Limited (Ex parte Applicant) [2025] KEHC 11890 (KLR), which held that section 9(2) of the Law Reform Act does not impose a six-month limit on mandamus applications to enforce decrees, noting instead the twelve-year limitation under section 4(4) of the Limitation of Actions Act. Additionally, the ex parte Applicant invoked Republic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another [2018] KEHC 9433 (KLR), where Mativo J(as he was then) outlined the test for mandamus, and Repuplic v Permanent Secretary, Ministry Of State For Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza JUD. REVIEW NO. E007 OF 2026 RULING 6 | P A G E [2012] KEHC 1643 (KLR), which confirmed that decrees against Government can only be enforced through mandamus under section 21(4) of the Government Proceedings Act. 18.On this basis, the ex-parte Applicant submitted that the Respondents’ continued non-compliance with the judgment of 17th October 2014 and the Certificate of Order against Government dated 24th July 2024 engages a clear enforceable duty, warranting the issuance of mandamus. 19.The Respondents did not file their respective submissions. Analysis and determination 20.The court has considered the application, supporting affidavit, replying affidavit and submissions on record; the issue for determination is whether the judgment delivered on 17th October 2014 is enforceable or is time barred. 21. Section 4(4) of the Limitation Action Act provides as follows: “An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the JUD. REVIEW NO. E007 OF 2026 RULING 7 | P A G E delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.” 22. Section 9 of the Law Reform Act provides as follows: “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. JUD. REVIEW NO. E007 OF 2026 RULING 8 | P A G E 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. In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave JUD. REVIEW NO. E007 OF 2026 RULING 9 | P A G E until the appeal is determined or the time for appealing has expired.” 23. In Republic v Communications Authority of Kenya; Information Communication Technology Association of Kenya (ICTAK) (Ex parte) [2021] KEELRC 7 (KLR), the court stated as follows: “The purpose of judicial review is to ensure that public bodies, execute their mandates within their statutory remit while at the same time, ensuring fairness by complying with the rules of natural justice. There is also the need to ensure that those decisions are rational. The boundaries of judicial review were demarcated by Lord Diplock in the famous case of Council of Civil Service Unions versus Minister for the Civil Service [1984]3 ALL ER 935, thus: ‘‘Judicial review has, I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads, the grounds upon which administrative action is subject to JUD. REVIEW NO. E007 OF 2026 RULING 10 | P A G E control by judicial review. The first ground I would call ‘‘illegality’’ the second ‘‘irrationality’’ and the third ‘‘procedural impropriety’’…. By ‘‘illegality’’ as a ground for judicial review, I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exercisable…. By ‘‘irrationality’’ I mean what can by now be succinctly referred to as ‘‘Wednesbury unreasonableness’’ (Associated Provincial Picture Houses Ltd. Versus Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision that is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mind to the question to be decided, could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well JUD. REVIEW NO. E007 OF 2026 RULING 11 | P A G E equipped to answer, or else there would be something badly wrong without our judicial system. I have described the third head as ‘‘procedural impropriety’’ rather than failure to observe basic rules of natural justice or failure to act with the procedural fairness towards the person who will be affected by the decision. This is because, susceptibility to judicial review, under this head, covers also a failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.’’ Kasule J. of Uganda explained the meaning of illegality, irrationality, and procedural impropriety in the case of Pastoli versus Kabale District Local Government Council & Others [2008] 2 EA 300 when he stated that: - ‘‘To succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is 12 | P A G E JUD. REVIEW NO. E007 OF 2026 RULING tainted with illegality, irrationality and procedural impropriety: Illegality is when the decision-making authority commits an error of law in the process of making the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…….. Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re an Application by Bukoba Gymkhana Club [1963] EA 478 at Page 479 paragraph ‘‘E’’. Procedural impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of making a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such JUD. REVIEW NO. E007 OF 2026 RULING 13 | P A G E authority exercises jurisdiction to make a decision. (Al-Mehdawi versus Secretary of State for the Home Department [1990] AC 876…’’ 24.In this instant case, the ex-parte Applicant, formerly employed by the Kenya Army from 1997 until his termination on 17th May 2013, successfully challenged the dismissal in ELRC Cause No. 401 of 2013, where judgment on 17th October 2014 ordered either reinstatement or retirement with full pension benefits. Despite subsequent rulings, including Lady Justice Monica Mbaru’s decision on 6th February 2020 awarding Kshs.973,144.80/= plus a monthly pension of Kshs.14,810.02/=, and the issuance of a certificate of costs and certificate of order against the Government, the Respondents have failed to comply. The ex-parte Applicant contends that this refusal, by public officers bound to implement court orders, is deliberate and amounts to dereliction of duty, and therefore seeks an order of mandamus to compel enforcement of the judgment and decree. The Respondent contends that the judgment is statute-barred. 25.The Ex-parte Applicant obtained a certificate of costs dated 12th January 2021 and certificate of order for payment of Kshs.6,755,033.28 dated 24th JUD. REVIEW NO. E007 OF 2026 RULING 14 | P A G E July 2024. Todate, the same has not been settled. Respondents however in their replying affidavit deponed by Grace Ajierh state officer in charge of litigation with the Respondent dated 16th December 2025 admits they are willing to meet their legal obligations and have factored the Applicant’s decretal sum in the next financial budget. 26. The court is of the view that where a decree has been granted and has not been set aside it must be settled. The Respondent as per the foresaid affidavit dated 16th December 2025 deponed by Grace Ajierh admits as such. 27.Furthermore, in the case of Republic v County Secretary, Government of Nairobi County & 5 Others, Faram East Africa Limited (Ex-parte Applicant) (Judicial Review Application E132 of 2024) [2025] KEHC 118909KLR). The court held: - “In the instant case, it is undisputed that the Applicant has fully satisfied the requirements of Section 21 by securing a valid decree, obtaining a certificate of order against the Government, and duly serving it upon the Respondents. The Respondents have not alleged any procedural default or legal impediment to payment. There is no evidence of any JUD. REVIEW NO. E007 OF 2026 RULING 15 | P A G E appeal, stay of execution or judicial review against the original judgment. The Respondents have argued that the instant application was brought after an inordinate delay and that as such the same is prejudicial to them. The delay, if any, does not negate the Applicant’s right to pursue enforcement of a valid court decree which has not been overtaken by any statutory limitation period. The ruling of 21st January 2022 gave rise to a monetary obligation which remains unsatisfied and the mere lapse of time does not extinguish or invalidate that obligation. Further, the Respondents have not demonstrated any specific prejudice suffered as a result of the timing of the application. If anything, they did not have to wait for mandamus application to compel them to settle the decree, an exercise that only burdens the tax payer as delay to settle decree means that costs continue to be incurred plus the accruing interest. The principles of justice and finality require that valid court orders be honoured and the invocation of delay cannot be used as a shield to avoid compliance with a lawful decree.” 28.The court is persuaded the above precedent, the application, respective affidavits and submissions JUD. REVIEW NO. E007 OF 2026 RULING 16 | P A G E and so orders the application dated 12th June 2025 be allowed on the following terms: - 1.An order of mandamus does issue 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 Forces and Commander Kenya Army. 2.An 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 and ensure that he receives his monthly pension dues as ordered by the court. 29. Costs to be awarded to the Ex-parte Applicant. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 31st Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER JUD. REVIEW NO. E007 OF 2026 RULING 17 | P A G E In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE JUD. REVIEW NO. E007 OF 2026 RULING 18 | P A G E