Republic v Principal Secretary Ministry of Defence & another; Tanui (Ex parte Applicant) (Judicial Review Application E037 of 2023) [2026] KEELRC 1389 (KLR) (15 May 2026) (Judgment)

Republic v Principal Secretary Ministry of Defence & another; Tanui (Ex parte Applicant) (Judicial Review Application E037 of 2023) [2026] KEELRC 1389 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1389 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review Application E037 of 2023 JW Keli, J May 15, 2026 IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS AND IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF SECTIONS 21 AND 22 OF THE GOVERNMENT PROCEEDINGS ACT AND IN THE MATTER OF THE JUDGMENT OF THE EMPLOYMENT AND LABOUR RELATIONS COURT DATED 8TH NOVEMBER 2019 BY HON. JUSTICE ONESMUS N. MAKAU IN ELRC PETITION NO. 153 OF 2018 (JOSEPH KIPKEMBOI TANUI V CHIEF OF DEFENCE FORCES, KENYA DEFENCE FORCES COUNCIL & THE HONOURABLE ATTORNEY GENERAL) AND IN THE MATTER OF THE DECREE DATED 15TH JANUARY, 2020 Between The Republic Applicant and The Principal Secretary Ministry of Defence 1st Respondent Attorney General 2nd Respondent and Joseph Kipkemboi Tanui Ex parte Applicant Judgment Introduction 1.The Ex-Parte Applicant commenced this suit vide a Notice of Motion under section 53 of the Civil Procedure Act and the provisions of sections 21 and 22 the Government Proceedings Act dated 6th September 2024, seeking for Orders:-a.An Order of Mandamus do issue to compel the Respondents to pay to the Applicant the sum of Kshs.3,000,000 being the decretal amount in ELRC Petition No. 153 of 2018 at Nairobi together with interest thereon from the 8th day of November 2019 until the date of payment and together with costs which have been taxed and certified by the |Deputy Registrar at Kshs.320,997.67.b.Such further or other relief as the Honourable Court may deem just and expedient to grant.c.Costs of and incidental to this suit be awarded to the Applicant. 2.The Notice of Motion was supported by the Affidavit of the Ex-Parte Applicant sworn on 15th August 2023, and the annexed bundle of documents 3.Despite being duly served with the court documents as evidenced by the Ex-Parte Applicant’s duly filed returns of service, at the time of delivery of this judgment, the Respondents have neither entered appearance nor filed a response to the application. The Ex -Parte Applicant’s case in summary 4.The Ex-Parte Applicants’ case is that he filed suit against the Respondents through a constitutional petition, ELRC Petition Number 153 of 2018 (Joseph Kipkemboi Tanui v Chief of Defence Forces, Kenya Defence Forces Council & The Honourable Attorney General) claiming that he was unfairly terminated from employment after he served in the Kenya Defence forces from 27th October 1983 to 23rd February 2018. 5.Vide a judgment on the petition delivered on 8th November 2019, the court: made a declaration that the termination of his contract of service contravened his right to fair administrative action under Article 47 of the Constitution of Kenya; and awarded him compensation in the sum of Kshs. 3,000,000 as damages for unlawful termination of employment together with costs of the suit plus interest thereon from the date of the judgment. 6.Despite obtaining the decree dated 15th January 2020 as well as the certificate of taxation dated 30th May 2022, and serving the same upon the Respondents together with numerous demands for payment, the decretal sum is yet to be settled, thereby necessitating this suit Determination 7.Following directions by the court that the application should be canvassed through written submissions, only the Ex-Parte Applicant filed. Issues for determination 8.The Ex-Parte Applicant identified a single issue for determination in his submissions dated 30th January 2026, namely, whether the Applicant is entitled to an Order of Mandamus to compel the Respondents to pay the decretal sum and costs. 9.The Ex parte Applicant worked for the Kenya Defence Forces until 23rd February 2018, when his services were terminated. He approached the court through a constitutional petition, ELRC Petition Number 153 of 2018 (Joseph Kipkemboi Tanui v Chief of Defence Forces, Kenya Defence Forces Council & The Honourable Attorney General), to challenge the said termination. On 8th November 2019, the Court delivered its judgment on the petition, in favour of the Ex parte Applicant as follows:‘a.Made a declaration that the termination of the Applicant's contract of service contravened his right to fair administrative action under Article 47 of the Constitution of Kenya;b.Awarded the Applicant compensation in the sum of Kes. 3,000,000 as damages for unlawful termination of employment together with costs of the suit plus interest thereon from the date of judgment.’ The Applicant subsequently extracted the Court's Decree dated 15th January 2020 as well as the Certificate of Taxation issued and dated 30th May 2022 and the Certificate of Order against the Government of even date, all of which he served upon the 2nd Respondent in line with section 21(2) of the Government Proceedings Act. 10.The exparte applicant submitted as follows- Ever since, the Respondents have deliberately and without any justifiable reasons declined to make payment as required by law, despite being aware of the need to settle the decretal amount and costs, which informs the instant application and submissions thereto, to compel them to make payment to meet the ends of justice. That the applicant is entitled to an Order of Mandamus to compel the respondents to pay the decretal amount and costs. That Order 53 of the Civil Procedure Rules, as read with Part VI of the Law Reform Act, under sections 8 and 9, grants this Honourable Court the power to issue orders of mandamus, prohibition and certiorari, as well as to regulate the manner in which such relief may be sought. These provisions constitute the statutory and procedural foundation upon which the present application is anchored. The law governing the grant of an Order of Mandamus is settled and uncontroverted. In Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR, the Court held that where a judgment has been obtained against the Government, and it fails to pay the decretal sum, an aggrieved party is entitled to seek an order of mandamus to compel the relevant accounting officer to pay. The court, citing the case of Republic v Kenya National Examinations Council ex parte Gathengi & 8 Others Civil Appeal No 234 of 1996 with approval, described an order of mandamus as: 12. The A command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. courts have also clearly articulated the circumstances under which an order of mandamus will issue. In R (Regina) v Dudsheath, ex parte, Meredith [1950] 2 ALL ER 741, as cited with approval by Justice Aburili in Multiline Services Limited v Nairobi City County Government (Judicial Review Application E042 of 2025) [2025] КЕНС 9325 (KLR), the Court stated: 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. This court has always refused to issue a mandamus if there is another remedy open to the party seeking it. Hon. Mativo J (as he then was) comprehensively outlined the criteria for the grant of an order of mandamus in Republic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another [2018] eKLR. In the said decision, the court outlined the factors that must be present for the order of mandamus to be granted: The test for mandamus is set out in Apotex Inc. vs. Canada (Attorney General),[23] and, was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration).[24] The eight factors that must be present for the writ to issue are:i.There must be a public legal duty to act;ii.The duty must be owed to the Applicants;iii.There must be a clear right to the performance of that duty, meaning that:a.The Applicants have satisfied all conditions precedent; andb.There must have been: - A prior demand for performance; A reasonable time to comply with the demand, unless there was outright refusal; and - An express refusal, or an implied refusal through unreasonable delayiv.No other adequate remedy is available to the Applicants.v.The order sought must be of some practical value or effect;vi.There is no equitable bar to the relief sought;vii.On a balance of convenience, mandamus should lie. The Applicant submits that he has fully satisfied all the legal requirements for the grant of an order of mandamus as articulated and demonstrated below:i.There exists a public legal duty to act. The Respondents bear a clear and non-discretionary public legal duty to satisfy a lawful decree issued by a court of competent jurisdiction. Once a court enters judgment against the Government and issues a decree, the relevant accounting officer assumes a statutory obligation to ensure payment in accordance with section 21 of the Government Proceedings Act. This duty does not arise from administrative benevolence but from statute and the constitutional obligation under Article 10 and Article 47 to act lawfully, reasonably and in good faith. The Respondents therefore carry a binding public duty to give effect to the judgment delivered by this Honourable Court on 8th November 2019.ii.The duty is owed to the Applicant The public duty to satisfy the decree is owed directly and specifically to the Applicant. The judgment, decree, certificate of taxation and certificate of order against the Government all name the Applicant as the judgment creditor. The Applicant stands as the immediate and sole beneficiary of the performance of this duty. The Respondents' failure to act therefore directly affects the Applicant's proprietary and constitutional interests, thereby satisfying the requirement that the duty be owed to а specific individual.iii.The Applicant has a clear right to performance of the duty. The Government Proceedings Act enshrines an elaborate procedure that an Applicant of an order of mandamus must comply with. The Applicant has duly complied with the provisions under Section 27. Justice Odunga in Republic vs. Permanent Secretary Office of The President Ministry of Internal Security & Another ex-parte Nassir Mwandihi [2014] eKLR succinctly stated the procedure thus: Before the Court issues such an order, there must be proof that the provisions of the Government Proceedings Act have been complied [with] with respect to issuance of certificate of costs and certificate of order against the Government. After the issuance of the aforesaid documents, just like in any application for mandamus, there must be a demand for payment made by or on behalf of the decree holder to the relevant department seeking payment since in an application for an order of mandamus, the law as a general rule requires a demand by the applicant for action and refusal as a prerequisite to the granting of an order, though there are exceptions to the rule. That the court orders are not made in vain. They are intended to be obeyed and given practical effect, and the Respondents cannot be permitted to disregard or ignore a lawful decree under the guise of administrative procedure. To hold otherwise would undermine the authority of this Honourable Court and erode public confidence in the administration of justice. The Applicant possesses a clear and enforceable right to the performance of the duty in question. This right crystallised upon the delivery of judgment in ELRC Petition No. 153 of 2018 and was subsequently formalised through the issuance of a decree, certificate of taxation and certificate of order against the Government. The Applicant fulfilled all conditions precedent to trigger the Respondents' obligation to effect payment and has fully complied with all statutory prerequisites required before seeking an order of mandamus. For avoidance of doubt, the Applicant: a. Extracted the decree dated 15th January 2020; b. Obtained a certificate of taxation dated 30th May 2022; c. d. Secured a certificate of order against the Government dated 30th May 2022; and Served all the above documents upon the Attorney General in accordance with section 21(2) of the Government Proceedings Act. Additionally, the Applicant, through his advocates, formally demanded settlement of the decretal sum and taxed costs by a letter dated 27th June 2022, addressed to the Attorney General. The demand clearly set out the amounts due and enclosed all relevant supporting documents. Having received no response, the Applicant further issued a reminder and notice of intended legal action by a letter dated 14th February 2023, thereby reiterating the demand . and affording the Respondents an additional opportunity to comply, to no avail, forcing the Applicant to file this application. This has been followed by numerous subsequent letters and extensive email correspondence addressed to the Respondents, none of which elicited any response. Notably, and the court can bear witness, each time the matter has returned before this Honourable Court, the Respondents have sought further time to comply, despite the lapse of over 6 years since judgment. Justice Aburili in Mwatsama v Attorney General & another (Judicial Review Application 259 of 2019) [2025] KЕНС 3634 (KLR) decried the injustice occasioned to judgement creditors when government inordinately delay in satisfying its judgment debt. The Court stated: It is expected that judgment debtors settle decrees once judgment is rendered and, in this case, an appeal was preferred by the respondents, which appeal was dismissed in 2019. To date, the respondents are still saying that they are willing to settle decree but that they have not secured funding. What an irony and a mockery of justice? Is it right to make a justice seeker remain a mere pious explorer in their pursuit of justice and remain in the corridors of justice forever? 26. In the present case, the Respondents persistently alluded to alleged internal approval delays but neither settled the decretal sum nor provided any lawful justification for non-payment. Such conduct amounts to an implied refusal through inordinate and unjustifiable delay. Administrative or budgetary processes cannot override a valid court decree, and the Respondents retain no discretion to revisit, vary or withhold compliance with it. The Applicant's right to payment therefore remains absolute, definite and legally enforceable. The circumstances in the present case mirror the mischief decried by the court in the above decision. Despite the finality of the judgment and the absence of any lawful impediment to payment, the Respondents have continued to rely on administrative processes to justify non-compliance. As in Mwatsama case cited above, such explanations only serve to perpetuate injustice and reduce a successful litigant's judgment into an illusory promise, contrary to the rule of law and the constitutional obligation to obey court orders. 28. The Respondents received not merely a reasonable time, but an inordinately extended period to comply with the demand. Despite service of all the aforementioned documents, the Respondents have failed to make any payment for over 6 years following the judgment. This prolonged delay far exceeds any reasonable administrative timeline and cannot be justified on grounds of internal approvals or policy constraints. The Respondents' sustained silence and inaction amount to an implied refusal to satisfy the decree. The courts have consistently held that unreasonable delay, where no explanation is offered, as is in the instant case, constitutes constructive refusal for purposes of mandamus.iv.No other remedy is available to the Applicant 30. The Applicant lacks any alternative or effective remedy for enforcing the decree. Having lost his employment and with no other source of income, he cannot sustain himself while waiting indefinitely for voluntary compliance by the Respondents. Moreover, the law prohibits execution proceedings against the Government, thereby foreclosing the ordinary enforcement mechanisms available to private litigants. Judicial review proceedings seeking an order of mandamus remain the sole viable means through which the Applicant can realise the fruits of the judgment. Absent such an order, the Applicant remains remediless despite holding a valid and final decree.v.The Order sought will have practical value and effect The order of mandamus sought will have immediate and practical effect by compelling the Respondents to discharge a long-outstanding statutory obligation. It will transform an unenforced judgment into actual relief and restore the Applicant to the position contemplated by the Court's decision. The order will also reinforce the authority of the Judiciary and affirm that court decrees bind all persons, including the State.vi.No equitable bar exists to the relief sought No equitable considerations disentitle the Applicant to the relief sought. The Applicant approached the Court with clean hands, complied fully with the law, exercised patience and afforded the Respondents ample opportunity to comply voluntarily. Conversely, the Respondents' conduct, marked by silence, prolonged delay and disregard for a lawful decree, renders them undeserving of equitable indulgence.vii.On a balance of convenience, mandamus should issue. The balance of convenience overwhelmingly favours the Applicant. Granting the order merely compels the Respondents to perform a duty they are already legally bound to perform. Denying the order would perpetuate injustice, reward non-compliance and undermine public confidence in the administration of justice. Mandamus therefore presents not only the legally appropriate remedy but also the just and proportionate response in the circumstances of this case. The Applicant has met every legal threshold for the grant of an order of mandamus. The Respondents' continued failure to satisfy a lawful decree of this Court constitutes a clear breach of statutory duty and an affront to the rule of law. 36. We humbly submit that litigation must come to an end and the verdict in the court's judgment ought to duly translate into fruit for one party and liability for the other, conclusively, so that justice is fully realized. It is imperative that the judicial process 7 enables parties to move forward, rather than leaving them trapped in perpetual limbo, as is presently the case despite the existence of a final decree. Consequently, we pray that this court exercises its discretion and grants an Order of Mandamus, compelling the Respondent to pay the Applicant the sum of Kes. 3,000,000 being the decretal amount in ELRC Petition No. 153 of 2018, together with interest thereon from the 8th day of November 2019 until the date of payment, together with costs which were taxed and certified by the Deputy Registrar at Kshs. 320,997.67. Decision 11.The Application is unopposed. The application is brought by under Order 53 of the Civil Procedure Rules for Applications for judicial review orders of mandamus, prohibition and certiorari. The instant application seeks a judicial review order of Mandamus. The application is further premised under section 8 and 9 of the Law Reform Act to wit –‘8.Orders of mandamus, prohibition and certiorari substituted for writs(1)The High Court shall not, whether in the exercise of its civil or criminaljurisdiction, issue any of the prerogative writs of mandamus, prohibition or certiorari.(2)In any case in which the High Court in England is, by virtue of the provisions of section 7 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, (1 and 2, Geo. 6, c. 63) of the United Kingdom empowered to make an order of mandamus, prohibition or certiorari, the High Court shall have power to make a like order.(3)No return shall be made to any such order, and no pleadings in prohibition shall be allowed, but the order shall be final, subject to the right of appeal therefrom conferred by subsection (5) of this section.(4)In any written law, references to any writ of mandamus, prohibition or certiorari shall be construed as references to the corresponding order, and references to the issue or award of any such writ shall be construed as references to the making of the corresponding order.9. Rules of court(1)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.(2)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.’’ The applicable rules are under Order 53 of the Civil Procedure Rules. 12.The Judicial review Order sought is as follows- An Order of Mandamus do issue to compel the Respondents to pay to the Applicant the sum of Kshs.3,000,000 being the decretal amount in ELRC Petition No. 153 of 2018 at Nairobi together with interest thereon from the 8th day of November 2019 until the date of payment and together with costs which have been taxed and certified by the |Deputy Registrar at Kshs.320,997.67. 13.The Ex parte Applicant obtained a judgment in his favour against the respondents, who are government. The execution is not allowed against government, and the process of recovery or enforcement of judgment is under the Government Proceedings Act. Section 21 of the Government Proceedings Act as follows- ‘21. Satisfaction of orders against the Government1.(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order: Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.(2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.(3)If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon: Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.(4)Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.(5)This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party’ 14.The Exparte Applicant vide affidavit dated 15th august 2023 in support of the application exhibited true copy of the judgment dated 8th November 2019 and a certificate of Order against the Government dated 30th May 2022 and Decree dated 15th January 2020 , certificate of taxation dated 30th May 2022 and reminders to the 2nd respondent to advise and arrange for the 1st respondent to pay the decretal sum being letter dated 27th June 2022 and 14th February 2023. I am persuaded to find that the Exparte Applicant has complied with the conditions under section 21 of the Government Proceedings Act. The remedy sought is 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. 15.The respondents have failed to comply and satisfy the judgment of the court and Decree of Kshs. 3,000,000 together and the certificate of taxation for Kshs. 320,997.67 and interest as reflected in the certificate against the Government dated 30th May 2022. The application was not opposed. The Order of Mandamus is due to compel compliance. 16.The judicial review application is held as merited and is allowed . The court is pleased to issue An Order of Mandamus compelling the Respondents to pay to the Exparte Applicant the sum of Kshs.3,000,000 being the decretal amount in ELRC Petition No. 153 of 2018 at Nairobi together with interest thereon from the 8th day of November 2019 until the date of payment and together with costs which have been taxed and certified by the |Deputy Registrar at Kshs.320,997.67. The Exparte Applicant is awarded costs of the application. 17.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026.JEMIMAH KELI,JUDGE.In the Presence of:Court Assistant: OtienoEx-Parte Applicant – Ms NgeiRespondents – absent