https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1667

Republic v Secretary, Public Service Commission & 2 others; Jobita (Ex parte Applicant) (Judicial Review Application E065 of 2025) [2026] KEELRC 1667 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1667 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review Application E065 of 2025 M Mbarũ, J June 18, 2026 Between Republic Applicant and The Secretary, Public Service Commission 1st Respondent Public Service Commission 2nd Respondent The Hon Attorney General 3rd Respondent and Michael Odongo Jobita Ex parte Applicant Judgment 1.The ex parte applicant moved the court seeking an order of mandamus compelling the 1st and 2nd respondents to pay Ksh. 30,553,673.11 with interest at court rates, pursuant to the Certificate of Order against the government dated 31 October 2024, founded on the judgment dated 7 December 2018 in Nairobi ELRC No. 298 of 2012. That costs and interests be awarded at the court's rates and any other order the court may deem fit and to grant. 2.The application is supported on the grounds that the ex parte applicant was an undersecretary at the office of the 3rd respondent, who, jointly with the 2nd respondent, terminated his employment, leading to Nairobi ELRC No. 298 of 2012. A judgment has since been delivered in his favour on 7 December 2018, a Certificate of Taxation dated 3 September 2024, and a Certificate of Order against Government dated 23 October 2025. However, the 1st respondent has failed to satisfy, leading to these proceedings. 3.The ex parte applicant also avers that the 1st respondent is the accounting officer of the 2nd respondent, with responsibility for satisfying the judgment decree I issued against the 2nd respondent as the judgment debtor. The 3rd respondent is the legal advisor to the 1st and 2nd respondents and the one who birthed these proceedings, as the last office where the ex parte application served is aware of the subject judgment. 4.The ex parte applicant is thus seeking an order of mandamus to compel the 1st and 2nd respondents to pay KSh. 30,553,673.11 with interests pursuant to Certificate of Order against Government dated 23 October 2024 and founded in the judgment delivered on 7 December 2018. 5.Further grounds are that the 2nd respondent was employed on 14 August 1978 on permanent and pensionable terms; he was compulsorily retired on 2 May 1995 upon attaining 40 years of age. He appealed the decision on 9 May 1995 but was unsuccessful. He lodged a second appeal with the 2nd respondent, who, 14 years later, on 9 January 2009, changed the date of retirement from 2 May 1995 to 27 June 2005, but indicated that the intervening 10-year period would be treated as leave without pay. 6.At the time the applicant received the letter dated 9 January 2009 from the 2nd respondent, he was 54 years old and could not be reinstated to employment. He had not received terminal dues or any pay for the period between 2 May 1995 and his retirement on 9 January 2009. 7.The ex parte applicant was dissatisfied with the decision to retire him at 40 years and the arbitrary conversion of his employment from 2 May 1995 to 27 June 2005 to leave without pay, and thus filed Nairobi ELRC No. 298 of 2012, obtaining judgment in his favour on 7 December 2018. 8.The dues costs were taxed at ksh. 861,715 and Certificate of Taxation dated 3 September 2024 issued. It was served on the 3rd response to 10 September 2024. 9.A Certificate of Order against the Government dated 23 October 2024 for Ksh. An amount of 30,553,672.11, including costs, was issued and served on the respondents on 4 December 2024. 10.The ex parte applicant engaged the respondent to make payment, but made false promises, leading to these proceedings. The orders sought should be issued. 11.The respondents filed Grounds of Opposition that these proceedings are an abuse of the court process. The Certificate of Order against Government is a fabrication of the Decretal amount payable to the ex parte applicant at KSh. The judgment and decree of the trial court do not support the amount of 30,553,673.11 ad. The taxed Bill of costs of Ksh. 861,715 demonstrates the sum of Ksh. 30,553,673.11 is unsupported. 12.Other grounds are that the actual payment to the ex parte applicant should be calculated by the Director, Human Resource Development and Management of the Office of the Attorney General and the Statement Department of Justice. The respondents have not refused to pay the decretal sum; however, payment is delayed due to the loss of their personal file. 13.The ex parte applicant has not complied with the mandatory requirements, including the KRA Tax Compliance Certificate and certified copies of the Decree. The decretal sum must be factored into the respective government Ministry budget and financial year to facilitate the settlement. Hence, the applicant should be dismissed to allow due compliance. 14.On the application, the ex parte applicant submitted that the orders sought should be issued in the interests of justice. The principles governing the issuance of an order of mandamus were addressed in the case of Republic v Kenya National Examination Council ex parte Gathenji & others [1997] eKLR, which held that mandamus compels the performance of a public duty imposed by law. In Republic v Permanent Secretary, Ministry of State for Provincial Administration & Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, the court held that once a Certificate of Order against Government is issued under Section 21(1) of the Government Proceedings Act, the duty to pay is mandatory and enforceable by an order of mandamus. 15.Once a judgment is entered against the government, the duty to pay is not discretionary. It is a statutory obligation as held in Republic v Attorney General & another ex parte James Alfred Koroso [2013] eKLR. Ordinary execution cannot issue against the government, and only mandamus is the proper remedy to compel performance of the statutory duty; hence, the orders sought should be issued. 16.The respondents submitted that the ex parte applicant's application is premised on the grounds that he is owed KSh. 30,553,673.11, but there is no decree to support such an assertion. This is a mere fabrication. He has not submitted the necessary documents for payment since his personal file has been lost. The respondents are unable to process any payments since the government ministry has not budgeted for them. 17.The ex parte application has included reliefs that are not included in the subject judgment delivered on 7 December 2018. The sum claimed at Ksh. 30,553,673.11 is a fabrication and cannot be supported. For the respondents to make payment, the Office of the Attorney General, Human Resource Department, is required to make a tabulation. However, the ex parte applicant’s personal file has been lost, and efforts are underway to locate it. Determination 18.These proceedings arise from a judgment delivered on 7 December 2018 in the Nairobi ELRC No. 298 of 2012. The court held that:In this regard, the court holds and finds that the claimant [ex parte applicant] is entitled to full salary and allowances, including annual increments for the period between 2 May 1995 and June 2005, when the claimant attained 55 years and could have retired under the Government retirement age policy of 55 years.The claimant’s pension dues will also be adjusted accordingly. The claimant shall further have costs. 19.Pursuant to the judgment, the ex parte applicant has obtained the following:a.Certificate of Taxation dated 3 September 2024 for KSh. 861,715.b.Certificate of Order against Government dated 23 October 2023 for Ksh.30,550,673.11. 20.The order of mandamus is a judicial command requiring the performance of a specified duty which has not been performed, as held in Republic v County Secretary – Nairobi City County & another ex parte Tom Ojienda & Associates [2019] eKLR. 21.Herein, the ex parte applicant obtained the Certificate of Order against the Government on 23 October 2024 and the Certificate of Order against the Government dated 18 September 2023. The respondents were served with these Certificates demanding payment. They did not comply. 22.The Grounds of Opposition herein demonstrate that the respondents are aware of these proceedings, save to urge the court that the ex parte applicant did not visit them for the tabulation of the dues as directed by the court. Further, there are no tabulations because the ex parte applicant’s file has been missing since. 23.A lawful judgment was delivered on 7 December 2018 against the respondents. They have done nothing to address and settle the dues owed to the ex parte applicant. Despite the ex parte applicant obtaining the Certificate of Order against the Government, indicating the Decretal Sum and taxed costs, there is no effort whatsoever to settle the same. Where the respondents felt aggrieved by the tabulation of the decretal sum indicated under the Certificates, nothing was done to address the issue. 24.The Supreme Court of Kenya in Githiga & 5 Others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR) confirmed that Courts possess the inherent power to enforce compliance with their lawful orders. The Court of Appeal in Republic v Ahmad Abolfathi Mohammed & another SC Criminal Application No 2 of 2018 [2018] eKLR held that contemnors demean the integrity and authority of courts and deride the rule of law. This must not be allowed to happen. 25.The payment of the decretal sum of Ksh. 30,550,673.11 to the ex parte applicant, as directed on 23 October 2024, is due. The requirement to comply with court orders is imperative upon the party served with such orders, as held in Michael Sistu Mwaura Kamau v Director of Public Prosecutions & 4 Others. 26.Accordingly, an order of mandamus is hereby issued directing the respondents to pay the ex parte applicant Ksh. 30,550,673.11 and also meet the costs of this application. DELIVERED IN OPEN COURT AT NAIROBI, THIS 18TH DAY OF JUNE 2026.M. MBARŨJUDGEIn the presence of:Court Assistants: Nelson Kemboi and Catherine Makau……………………………………………… and………………….…………………………...