https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1572

Republic v Principal Secretary, Ministry of Interior and Coordination of National Government & 2 others; Majau & another (Ex parte Applicants) (Judicial Review Cause E007 of 2025) [2026] KEELRC 1572 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1572 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Meru Judicial Review Cause E007 of 2025 SC Rutto, J June 4, 2026 IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW OF THE ORDER OF MANDAMUS PURSUANT TO ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010 AND IN THE MATTER OF SECTION 21(4) OF THE GOVERNMENT PROCEEDINGS ACT, 2015 AND IN THE MATTER OF THE CIVIL PROCEDURE RULES 2010 ORDER 53 AND IN THE MATTER OF THE WOK INJURY BENEFITS ACT AND IN THE MATTER OF EXECUTION OF THE COURT ORDER AND DECREE AGAINST THE GOVERNMENT ISSUED IN THE CHIEF MAGISTRATES' COURT AT CHUKA Between Republic Applicant and The Principal Secretary, Ministry Of Interior And Coordination Of National Government 1st Respondent Directorate of Occupational Health and Safety Services 2nd Respondent Hon. Attorney General 3rd Respondent and John Mwenda Majau Ex parte Applicant Gladys Kanini Ex parte Applicant Judgment 1.The Ex parte Applicants have moved this Court through a Notice of Motion dated 24th November 2025, seeking the following orders: 1.An order of mandamus be and is hereby issued to the 1st Respondent to comply with court orders by paying the Applicant the decretal sum of Kshs 7,618,393 (sic) per the certificate of order against the government dated the 17th day of June 2025. 2.Costs to be provided for. 2.The Notice of Motion is premised on the grounds that, on 7th July 2021, the Ex parte Applicants were awarded a sum of Kshs. 4,911,360.00 by the 2nd Respondent. They aver that the 1st Respondent was duly notified of the award and subsequently served with a demand for settlement. Despite making numerous inquiries with the 1st, 2nd, and 3rd Respondents regarding payment, the award remains unsettled. 3.The Ex parte Applicants further contend that no appeal was lodged by the 1st Respondent against the award issued by the 2nd Respondent. They state that the present application has been occasioned by the 1st Respondent’s failure to comply with the decree dated 31st December 2024 and the Certificate of Order against the Government issued on 17th June 2025. 4.It is also averred by the Ex Parte Applicants that, notwithstanding its knowledge of the award, the decree of the Court, and the Certificate of Order against the Government, the 1st Respondent has persistently and willfully failed to comply with the said orders. 5.In opposition to the Notice of Motion, the Respondents filed joint Grounds of Opposition dated 10th March 2026. They contend that the evidence tendered by the Ex parte Applicants does not demonstrate that the 3rd Respondent was duly served with the Certificate of Order against the Government and, consequently, the statutory obligation on the part of the 1st Respondent to satisfy the decree had not crystallized. 6.The Respondents further submit that an order of mandamus can only issue where an applicant demonstrates an express or implied refusal by the respondent to perform a statutory duty or comply with a lawful order. 7.It is therefore the Respondents’ position that the Notice of Motion is premature, devoid of merit, and constitutes an abuse of the Court process. 8.In response to the Grounds of Opposition, the 1st Ex Parte Applicant, John Mwenda Majau, swore a Further Affidavit in which he deposes that physical service of the Certificate of Order against the Government was duly effected upon the Principal Secretary, Ministry of Interior, being the relevant accounting officer. 9.He further states, on the advice of his advocates on record, that upon taxation, issuance, and service of the Certificate of Order against the Government, a legal obligation arose on the part of the 1st Respondent to satisfy the decretal sum. 10.Mr. Mwenda also avers that all the requisite procedural steps were duly complied with prior to the institution of the present application. Submissions 11.The Application was canvassed by way of written submissions. On their part, the Ex Parte Applicants have submitted that the application satisfies the legal threshold for the grant of the orders sought. They contend that the claim arises from a lawful and procedurally sound process that culminated in a valid court order that remains unsatisfied to date. 12.The Ex Parte Applicants have further submitted that they have complied with all the statutory requirements by obtaining the Certificate of Order against the Government and effecting service upon the relevant Ministry and accounting officer, who bears the obligation to satisfy the decree. In support of their submissions, the Ex Parte Applicants have placed reliance on the case of Republic v Permanent Secretary Ministry of State for Provincial Administration & Internal Security Ex parte Fredrick Manoah Egunza (2012) eKLR. 13.The Respondents, on the other hand, have submitted that an order of mandamus can only issue where it is demonstrated that the requirements under Section 21 of the Government Proceedings Act have been fully complied with. In support of this position, the Respondents have referenced the case of Republic v Permanent Secretary Office of the President Ministry of Internal Security & Another ex parte Nassir Mwandihi [2014] eKLR. 14.The Respondents have maintained that the Ex Parte Applicants failed to comply with the mandatory requirements of Section 21(3) of the Government Proceedings Act and are therefore not entitled to the orders sought. Analysis and Determination 15.Flowing from the record, the primary issue for determination is whether an order of mandamus should issue compelling the Respondents to pay the Ex parte Applicants the sum of Kshs. 7,618,398.00. 16.The Ex parte Applicants contend that on 7th July 2021, they were awarded the sum of Kshs. 4,911,360.00 by the Directorate of Occupational Safety and Health Services, the 2nd Respondent herein. 17.The record bears that on 31st December 2024, the said award was adopted as a judgment of the Court, with judgment entered against the 1st Respondent in the sum of Kshs. 4,911,360.00. 18.Notably, the Respondents’ sole contention is that the Ex parte Applicants failed to comply with the mandatory requirements of Section 21 of the Government Proceedings Act, in that they neither obtained nor properly served a Certificate of Order against the Government. 19.The Ex parte Applicants, however, dispute this position and maintain that due service was effected upon the 1st Respondent. In support thereof, they rely on the Affidavit of Service sworn on 26th March 2026 by John Njenga, in which he deposes that the Certificate of Order against the Government dated 17th June 2025 was served upon the 1st Respondent. They have further produced a copy of the said Certificate of Order against the Government. Notably, the said Certificate bears the receiving stamp of the 1st Respondent, indicating receipt on 18th June 2025. 20.It is worth noting that the 1st Respondent has not disputed or disowned the said receiving stamp. In the circumstances, the Court has no basis to doubt that service was duly effected upon the 1st Respondent in compliance with Section 21 of the Government Proceedings Act. 21.With respect to the Respondents’ argument concerning non-service upon the 3rd Respondent, it is imperative to revisit Section 21(2) of the Government Proceedings Act, which provides as follows:“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.” 22.From the above provision, it is clear that service of the Certificate upon the Attorney-General is not couched in mandatory terms. In the Court’s respectful view, the essential and mandatory requirement is service upon the accounting officer, who is statutorily obligated under Section 21(3) of the Act to satisfy the decree. 23.Accordingly, in the present case, the Court finds that the requirements of Section 21 of the Government Proceedings Act were duly satisfied, the Certificate of Order against the Government having been properly served upon the 1st Respondent, who is the accounting officer contemplated under Section 21(3) of the Act. 24.Having so found, the Court now turns to determine whether the remedy of mandamus should issue against the 1st Respondent. 25.In Republic v Kenya National Examinations Council Ex Parte Gathenji & 8 Others, Civil Appeal No. 234 of 1996, the Court of Appeal, citing with approval Halsbury’s Laws of England, 4th Edition, Vol. 7, p. 111, para. 89, stated as follows regarding the nature of an order of mandamus:“The order of mandamus is of most extensive remedial nature and is in form, of 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. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual." At paragraph 90 headed “the mandate” it is stated:“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.”These principles mean that an order of mandamus compels 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.” 26.In the present case, it is not in dispute that an award was issued by the 2nd Respondent in favour of the Ex parte Applicants, and that the said award was subsequently adopted as a judgment of the Court, with judgment entered against the 1st Respondent in the sum of Kshs. 4,911,360.00 together with interest from the date of assessment until payment in full. 27.As already found herein, there is evidence that a Certificate of Order against the Government was obtained by the Ex parte Applicants and duly served upon the 1st Respondent on 18th June 2025. The Court is therefore satisfied that the 1st Respondent was aware of the existence of the decree. 28.Notwithstanding the foregoing, there is no evidence on record to demonstrate that the 1st Respondent has settled the decretal sum due and owing to the Ex Parte Applicants. 29.The court concurs with the decision in the case of Republic vs Town Clerk of Webuye County Council & Another HCCC 448 of 2006 that a decree holder’s right to enjoy fruits of his judgment must not be thwarted and that the Court should adopt an interpretation that favours enforcement and as far as possible, secures accrued rights. 30.It is uncontested that the 1st Respondent is under a statutory and legal obligation, pursuant to Section 21 of the Government Proceedings Act, to satisfy the decree in favour of the Ex parte Applicants, who are the lawful decree holders. 31.All things considered, the Court is persuaded that the Ex parte Applicants have established a basis for the grant of an order of mandamus. Consequently, the instant Notice of Motion is found to be meritorious, and an order of mandamus is hereby issued compelling the 1st Respondent to comply with the decree issued on 7th February 2025 by settling the sum of Kshs. 7,618,393.00, being the amount reflected in the Certificate of Order against the Government dated 17th June 2025. 32.In view of the fact that these proceedings were occasioned by the inaction of the 1st Respondent, it shall bear the costs of the suit. DATED, SIGNED AND DELIVERED AT MERU THIS 4TH DAY OF JUNE 2026………………………………STELLA RUTTOJUDGEIn the presence of:For the Ex parte Applicants Ms. WangechiFor the Respondents Ms. KibitiCourt assistant QabaleORDERIn 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 had 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.STELLA RUTTOJUDGE