[2016] KEHC 358 (KLR)
The court found that the applicant holds a valid and unsatisfied decree from the Employment and Labour Relations Court, and the respondents have neither paid the decretal sum nor provided any evidence of payment or legal justification for non-payment. The absence of a replying affidavit or proof of settlement by the...
Source-derived case information.
- Citation
- [2016] KEHC 358 (KLR)
- Parties
- Applicant: Republic; Respondent: Principal Secretary Ministry of Defence; Respondent: Attorney General; Applicant: Lt. Col (Rtd) Richard Nchapi Leiyagu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 301 of 2016
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application allowed
- Judges
- RE Aburili
- Legal Topics
- Judicial Review Mandamus, Enforcement of Court Decrees, Government Liability, Public Officer Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Principal Secretary Ministry of Defence
Respondent
Attorney General
Respondent
Lt. Col (Rtd) Richard Nchapi Leiyagu
Applicant
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the applicant is entitled to an order of mandamus to compel the respondents to settle the decree issued by the Employment and Labour Relations Court in Petition No. 6 of 2013.
- 2 Whether the respondents have failed to satisfy the court decree despite requests and absence of evidence of payment.
Ratio Decidendi
The court found that the applicant holds a valid and unsatisfied decree from the Employment and Labour Relations Court, and the respondents have neither paid the decretal sum nor provided any evidence of payment or legal justification for non-payment. The absence of a replying affidavit or proof of settlement by the respondents, despite their acknowledgment of the debt and consent to the hearing date, justified the issuance of an order of mandamus. The court therefore granted the order compelling the respondents to settle the decree within 90 days, failing which the applicant may pursue contempt proceedings.
Court Disposition
application allowed
Orders
- An order of mandamus is issued compelling the respondents to settle the decree in Petition No. 6 of 2013, Employment and Labour Relations Court, Nairobi.
- The sums due are to be settled within 90 days from the date of judgment.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE HIGH COURT OF KENYA
AT NAIROBI
JUDICIAL REVIEW NO. 301 OF 2016
IN THE MATER OF AN APPLICATION BY LT COL (RTD) RICHARD NCHAPI LEIYAGU FOR AN ORDER OF MANDAMUS
AND
IN THE MATTER OF PART IV OF THE GOVERNMENT PROCEEDINGS ACT
AND
IN THE MATER OF SECTION 7 & 9 OF THE LAW REFORM ACT
AND
IN THE MATTER OF ENFORCEMENT OF A DECREE OF THE EMPLOYMENT AND LABOUR RELATIONS COURT IN PETITION NO. 6 OF 213, NAIROBI AND CONSEQUENTIAL ORDERS
REPUBLIC..........................................................................................APPLICANT
VERSUS
PRINCIPAL SECRETARY MINISTRY OF DEFENCE..........1ST RESPONDENT
ATTORNEY GENERAL ……………....................................2ND RESPONDENT
AND
LT. COL (RTD) RICHARD NCHAPI LEIYAGU….THE EX-PARTE APPLICANT
JUDGMENT
1. This court did on 15th July 2016 grant the exparte applicant leave to apply for Judicial Review orders of Mandamus to compel the respondents to settle decree in Industrial Court Nairobi Petition No. 6 of 2013 amounting to shs 9,957,862. 08 inclusive of interest and costs.
2. The substantive motion was filed on 29th July 2016 within the 21 days stipulated in the order for leave.
3. The substantive motion was served upon the respondents who appeared on 5th October 2016 and took this hearing date by consent while stating that they were working on payment of the decreed sum.
4. There is no replying affidavit to the application and neither is there evidence of payment of the decretal sum.
5. I have considered the notice of motion as supported by the statutory statement, verifying affidavit and the annextures.
6. I am satisfied that the applicant holds a valid decree of the court which has not been satisfied from 10th June 2015 despite requests as shown by correspondences.
7. In the premises, I am inclined to allow the judicial review application dated 28th July, 2016 and grant and I hereby issue the Judicial Review orders of Mandamus compelling the respondents to settle decree in Petition No. 6/2013 Industrial Court at Nairobi.
8. The said sums due to be settled within 90 days from the date hereof and in default, the applicant to file an appropriate application for contempt. Each party to bear costs of the judicial review proceedings.
Dated, signed, and delivered at Nairobi this 23rd day of November, 2016.
R.E. ABURILI
JUDGE
In the presence of:
Miss Mugo for the exparte applicant
Miss Gathoka for the respondents
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