https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1551

Republic v Sports, Arts & Social Development Fund Oversight Board & 4 others; Nguti (Ex parte) (Judicial Review Application E072 of 2025) [2026] KEELRC 1551 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1551 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review Application E072 of 2025 JW Keli, J June 5, 2026 Between Republic Applicant and The Sports, Arts & Social Development Fund Oversight Board 1st Respondent The Administrator, Sports , Arts & Social Development Fund 2nd Respondent The Chief Executive Officer, Sports, Arts & Social Development Fund 3rd Respondent The Honourable Attorney General 4th Respondent and The Public Service Commission Of Kenya Interested Party and Martin M Nguti Ex parte Judgment 1.The Ex-Parte Applicants commenced this suit vide a Notice of Motion judicial review application dated 23rd March 2026 seeking for the following Orders:-a)A writ of mandamus against the Administrator of the Sports and Social Development Fund c/o the Principal Secretary, State Department of Sports, Ministry of Sports, Culture and Heritage and the Chief Executive Officer of the Sports and Social Development Fund compelling both of them to forthwith satisfy the decree, certificate of taxation and/or certificate of order issued in Nairobi Employment and Labour Relations Court Cause No. 6590 of 2020 Martin M. Ng'ati vs The Sports, Arts & Social Development Fund Oversight Board & 4 others.b)Costs of this application be borne by the Respondents. 2.The Notice of Motion was supported by the Ex-Parte Applicant’s Supporting Affidavit sworn on 23rd March 2026, as well as the bundle of documents attached. 3.There was no appearance entered or response filed by the Respondents. The Ex -Parte Applicant’s case 4.The Ex-Parte Applicants’ case is that the Court issued a decree against the Respondents in Cause No. 6590 of 2020 on 18th July 2024, and thereafter, a Certificate of Taxation was issued by the Court on 2nd February 2025. On 8th April 2025, a Certificate of Order and Costs against the Government dated 8th April 2025 was further issued and served upon the Respondents. 5.It is averred that despite being served, the Respondents have failed, refused and/or ignored to remit the amounts contained in the Certificate of Order and Costs and the Certificate of Taxation to the Ex-parte Applicant. Determination 6.Following directions by the court that the application should be canvassed through written submissions, the Ex Parte Applicant filed. Issues for determination 7.The Ex-Parte Applicant identified the following single issue for determination in his submissions dated 14th May 2026, namely:i.Whether the Ex-Parte Applicant has complied with the requirements of Section 21 of the Government Proceedings Act (Cap 40) thereby imposing an obligation on the 2nd and 3rd Respondents to satisfy the decree. 8.The application is not opposed. 9.The application is brought 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 sections 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 criminal jurisdiction, 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 which states as follows- ‘ 1. Applications for mandamus, prohibition and certiorari to be made only with leave [Order 53, rule 1](1)No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.…3.Application to be by notice of motion [Order 53, rule 3](1)When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.(2)The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the court and on all parties to the proceedings….’’ The court finds the exparte applicant has complied with the procedure. 10.The Judicial review Order sought is as follows- ‘A writ of mandamus against the Administrator of the Sports and Social Development Fund c/o the Principal Secretary, State Department of Sports, Ministry of Sports, Culture and Heritage and the Chief Executive Officer of the Sports and Social Development Fund compelling both of them to forthwith satisfy the decree, certificate of taxation and/or certificate of order issued in Nairobi Employment and Labour Relations Court Cause No. 6590 of 2020 Martin M. Ng'ati vs The Sports, Arts & Social Development Fund Oversight Board & 4 others.’ 11.The Ex-Parte Applicant’s case is that the Court issued a decree against the Respondents in Cause No. 6590 of 2020 on 18th July 2024, and thereafter, a Certificate of Taxation was issued by the Court on 2nd February 2025. On 8th April 2025, a Certificate of Order and Costs against the Government dated 8th April 2025 was further issued and served upon the Respondents. 12.It is averred that despite being served, the Respondents have failed, refused and/or ignored to remit the amounts contained in the Certificate of Order and Costs and the Certificate of Taxation to the Ex-parte Applicant. The regular execution proceedings are not allowed against the 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 Government(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’ 13.The Exparte Applicant vide affidavit dated 23rd March 2026 in support of the application exhibited a copy of the Decree dated 8th April 2025 and a certificate of Order against the Government dated 18th July 2024 and a certificate of taxation dated 2nd February 2025. The documents were stamped as received by the respondent on the 14th April 2025. I am persuaded to find that the Ex parte 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. 14.The respondents have failed to comply and satisfy the judgment of the court and Decree of Kshs.1,304,441/-(Decretal sum plus interest and costs of Kshs. 250,418) as reflected in the Decree dated 8th April 2025. The application was not opposed. 15.The judicial review application is held as merited and is allowed. The court is pleased to issue An Order of Mandamus against the Administrator of the Sports and Social Development Fund c/o the Principal Secretary, State Department of Sports, Ministry of Sports, Culture and Heritage and the Chief Executive Officer of the Sports and Social Development Fund compelling both of them to forthwith satisfy the decree, certificate of taxation and/or certificate of order issued in Nairobi Employment and Labour Relations Court Cause No. 6590 of 2020 Martin M. Ng'ati vs The Sports, Arts & Social Development Fund Oversight Board & 4 others for the total sum of Kshs.1,304,441. 16.The Exparte Applicant is awarded costs of the application. 17.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 5TH DAY OF JUNE, 2026.JEMIMAH KELI,JUDGE.In the Presence of:Court Assistant: OtienoEx-Parte Applicant – KimataRespondent – absent