Masinde v Nairobi City County (Miscellaneous Civil Application E020 of 2025) [2026] KEELRC 1388 (KLR) (15 May 2026) (Judgment)

Masinde v Nairobi City County (Miscellaneous Civil Application E020 of 2025) [2026] KEELRC 1388 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1388 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Civil Application E020 of 2025 JW Keli, J May 15, 2026 Between Richard K Masinde Applicant and Nairobi City County Respondent Judgment 1.The Exparte Applicant upon grant of leave by vide Order of Justice Nderi Nduma (as he then was) on the 9th April 2025 filed the instant Notice of Motion dated 11th April 2025 brought under Sections 8 and 9 of the Law Reform Act (Cap26), Order 53 Rule 3 of the Civil Procedure Rules 2010 and all other enabling provisions of the law) seeking for the following orders-1.An Order Of Mandamus compelling the Respondent, through its officers namely Godfrey Akumali (The Nairobi County Secretary), Charles Kerich (The County Executive Committee Member In Charge Of Finance And Economic Affairs) And Asha Abdi (the Chief Accounting Officer In Charge Of Finance) to satisfy the payment of a total of Kshs. 2,909,066/= being a total of decretal sum of Kshs. 2,576,400.00/= plus cost of the suit of Kshs. 332,666/=. The decretal amount of Kshs. 2,576,400/= as per the judgment delivered on the 23rd day of February,2024 by Hon: Lady Justice Stella Rutto, in ELRC Suit No. 587 of 2016 at Nairobi and costs of the suit of Kshs 332,666/= pursuant to certificate of taxation dated 30th August,2024 by the Honourable Deputy Registrar Employment & Labour Relations Court.2.An order Citing the respondent's officers namely Godfrey Akumali (the Nairobi County Secretary), Charles Kerich (The County Executive Committee Member In Charge Of Finance And Economіс Affairs) And Asha Abdi (The Chief Accouting Officer In Charge Of Finance) for failing to satisfy the payment of a total of Kshs. 2,909,066/= being a total of decretal sum of Kshs. 2,576,400.00/= plus cost of the suit of Kshs. 332,666/=. Despite the existence of decrees dated 30th August 2024, 19th December,2024 and certificate of taxation dated 30th August,2024. 1. An order for costs of this application to be provided for. 2.The application was based on the ground under the statutory statement dated 3rd April 2025 as follows-a.That vide a judgment dated 23rd February, 2024 wherein this Honourable Court did award the Applicant herein decretal amount of Kshs. 2,576,400/= and the cost of the suit of Kshs. 332,666/= as taxed vide certificate of taxation dated 30th August,2024 by the Honourable Deputy Registrar Employment & Labour Relations Court. The Respondent herein has failed/refused/ignored and neglected to pay the Applicant, despite the existence of decrees dated 30th August 2024, 19th December 2024 and a certificate of taxation dated 30th August 2024.b.That the applicant demands from the Respondent a total of Kshs. 2,909,066/= being a total of decretal sum of Kshs. 2,576,400.00/= plus cost of the suit of Kshs. 332,666/=.c.That the applicant, consequent to the judgment of the Honourable Court decree dated 1st March,2024, which was presented to the deputy registrar for certification and thereafter served the same upon the Respondent for payment.d.That the Applicant then prepared his bill of costs which was contested by the Respondent in court wherein the contention on the said bill of costs was canvassed by way of written submissions and the Deputy Registrar did deliver a ruling on the 22nd August, 2024 taxing the said bill of cost Kshs. 332,666/=.e.That a Certificate of Taxation dated 30th August,2024 has since been issued by the Deputy Registrar with respect to the aforesaid taxed amount.f.That the Applicant has made to the Respondents various reminders through letters to wit: letters dated 6th May,2024 which was responded to by the Respondent vide its letter dated 21st May,2024 informing the applicant through his advocate on record that payment process commenced on 3rd April, 2024 therein advising the Respondent to remain patient as due process was taking course.g.That the Applicant being relentless and in pursuit of his payment and further having remained patient as advised; through his advocate drafted yet another letter dated 13th September, 2024 reminding the Respondent on the pending payments therewith enclosing certificate of taxation and the bank and the account No. in which payments were to be made, but to date the Respondents has remained adamant on not making the said payments.h.That the Applicant further filed a ELRCJR/E056/2024 in which judgment was entered against the Respondent and a decree issued on 19th December,2024 was extracted and served upon the Respondent but to date the orders has not been complied with despite several visits by the Applicant to the Respondent's offices.i.That the respondent's officers are reneging on their duties of satisfying the said payment thence should be cited for such failure.j.That there is no pending stay order on payment of the decretal sum and costs of the suit to warrant the exhibited delay in payment by the Respondent through its officers.k.That the Applicant has suffered mentally and emotional anguish for being denied the fruit of his judgment by the Respondent.l.That а certificate of taxation dated 30th August,2024 has since been issued by the Deputy Registrar with respect to the aforesaid taxed amount and decrees on Kshs 2,576,400.00/= extracted and served upon the Respondent.m.That the Applicant consequent to the judgment delivered on 19th December,2024 extracted a decree dated 19th December, 2024 for decretal sum of Kshs. 2,576,400 and cost of the suit of Kshs. 332,666/= which was served upon the Respondents for payment.n.That nonpayment of the decretal sum together with the costs of the suit is illegal, irrational, improper and a total contempt of courts orders of 19th December,2024.o.That there is a legitimate reason why the Applicant should be granted orders as prayed herein for the ends of justice to meet.p.That this application has merit and has been brought without unreasonable delay.q.That lack of payment decretal sum together with costs of the suit has/will expose the applicant herein in a financial limbo hence the urgency of this matter.r.That the Applicant should not be punished for merely pursuing his legitimate expectation of payment that arose from judgment/order of a court with competent jurisdiction.s.That no prejudice will be suffered by the Respondents should the Honorable Court grant orders sought in any case it is the Applicant who has suffered the most. 3.The Ex parte Applicant filed a supporting affidavit where he annexed documents in support of the application, of which the court noted included the impugned Judgment. 4.The Court noted the application before the lower court was opposed vide replying affidavit of Asha Abdi the chief officer In charge of finance of the Respondent as follows- That, I have read and understood the contents and import of the Statutory Statement accompanied by the Verifying Affidavit sworn by Richard K. Masinde dated 3rd April 2025 to which I would wish to respond as hereinafter. That I am advised by the County's Advocate on Record, which advice I take to be sound, that the Statutory Statement is defective, an abuse of the Court process and/or incompetent as the Applicant has failed to point with the required manner of particularly and specifically how the County has failed to honor their payment. That the Applicant served the Respondent with the Certificate of Taxation issued on 30th of August, 2024 which was way after the budget processed had lapsed and therefore could not be considered in the budget of this financial year 2024-2025. That we had already fully budget all the amounts allocated for payment of legal fees and decretals for the Financial Year 2024/2025. That, the Nairobi City County is funded through allocation of funds by the County Assembly. That the Nairobi City County can only be able to determine how much decretal sums it can pay based on the allocations that will be allocated for the Financial Year. That the said allocation must be budgeted for and that the Applicants decretal amount has now been considered in this financial year. That, the Applicant herein did not follow the Procedure as provided for in the Government Proceedings Act, Cap 40, Laws of Kenya, Section 21. That, the Applicant has not satisfied the provision of the Act, that no execution or attachment or process in the nature thereof shall be issued out of any 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 as codified in section 21(4) of the Government Proceedings Act. That the stated County Officers are not individually liable under any Order for payment by Government and therefore any Order issued compelling them will be arbitrary and punitive to them. As a public institution dealing with public funds, we are constrained by the Public Finance Management Act (PFM), 2012, among other legislation, with regard to the County's expenditure. That, the Nairobi County Government cannot commit funds unless budgeted for and approved by the Nairobi City County Assembly. That, the PFM Act Section 125 provides for the budget making process as follows:13(1)The budget process for county governments in any financial year shall consist of the following stages -a)integrated development planning process which shall include both long term and medium term planning;b)planning and establishing financial and economic priorities for the county over the medium term;c)making an overall estimation of the county government's revenue and expenditure;d)adoption of County Fiscal Strategy Paper;e)preparing budget estimates for the county government and submitting.f)Approving of the estimates by the County Assembly;g)enacting an appropriation law and any other laws required to implement the county government's budget;h)implementing the county government's budget; andi)accounting for, and evaluating the county government's budgeted revenues and expenditures(2)The County Executive Committee Member for Finance shall ensure that there is public participation in the budget process.’ 5.The respondent contended that the settlement of any monies owed by the County must comply with the provisions of the PMF Act, Section 117, 125, 129, 131 and 133 as follows:-‘1.County fiscal strategy paper pursuant to section 117(1) and (6) of the PFMA representing the financial outlook of a County and be adopted by the County Assembly by 14th March of each year2.A county budget estimates of revenue expenditure pursuant to section 125, 129 and 131 of the PFMA and presented to the county assembly by the county executive member for finance by 30th April each year for approval by the county assembly before 30th June each year;3)A County Appropriations Act which the County Government must consider and enact by 30th June each year; and4)A County Finance Act pursuant to section 133 of the PFMA, a County Assembly must consider and enact by 30th September each year.’ 6.The respondent further urged the Court to take Judicial Notice of the fact that the decision to pay involves various stakeholders and the County involves many departments responsible for financial and fiscal matters. That, the Applicant has not satisfied the requirements of execution as per the Public Finance Management Act and the Government Proceedings Act. The Court not to grant the Orders sought in this instant Application since the correct procedure enshrined in law has not been adhered to. That the Court not to grant the Orders sought in this instant Application since County Officers should not be held liable for the Orders of payment against the Government. That the Application as filed is an abuse of the Court process and granting it would be prejudicial to the Nairobi County Government. 7.The Ex parte Applicant filed a further affidavit and averred he complied with section 21 of the Government Proceedings Act and that the reference to the Public Finance Management Act (PFM), 2012 was not relevant to the payment of the default sum, which remained unsatisfied, thus the instant application to cite the accounting officer. Determination 8.The application was canvassed by way of written submissions. Only the Exparte Applicant complied as at time of issuance of judgment date. The issue identified for determination by the court was whether the application is merited., 9.The application is hinged under Order 53 of the Civil Procedure Rules and sought for judicial review orders as stated above to enforce judgment against the respondent, the Nairobi City County. The respondent is a county government, thus falling under the Government Proceedings Act as provided under 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’ 10.At the outset, the court states that this is the second judicial review proceedings before the court for the judicial review order of Mandamus. The Exparte Applicant annexed as RKM8 a decree from judgment by Justice Ongaya (as he then was) which is reproduced as follows- ‘republic Of Kenya In The Employment And Labour Relations Court Of Kenya At Nairobi City Court Name: Milimani Commercial Case Number: Elrcjr/e056/2024 Citation: Richard K. Masinde Vs Nairobi City County Orders(court Document) Before Hon. Justice Byram Ongaya (In Court On 19th December, 2024 Before Honourable Justice Byram Ongaya) Claim For: Decree 1). An Order Of Mandamus to remove into this Honourable Court and Compel the Respondent to pay the Applicant the decretal amount of Kshs. 2,576,400/= as per the Judgment delivered on the 23rd February, 2024 by Honourable Lady Justice Stella Rutto, in ELRC suit No. 587 of 2016 at Nairobi and costs of the suit of Kshs. 332,666/= as taxed vide certificate of Taxation dated 30th August, 2024 by the Honourable Deputy Registrar Employment And Labour Relations Court. 2). An Order for costs of this application to be provided for. By the Judgment of this Honourable Court dated, signed and delivered by Video Link and in Court at Nairobi by Honourable Justice Byram Ongaya on 19th December, 2024:- IT IS Hereby Ordered And Decreed That:- 1. The Order of Mandamus hereby issued compelling the Respondent to pay the applicant the decretal amount of Kshs. 2,576,400/= as per the Judgment delivered on 23rd February, 2024 by Hon. Lady Justice Stella Rutto, in ELRC Suit No. 587 of 2016 at Nairobi and costs of the suit of Kshs. Employment 332,666/= as And taxed Labour vide Certificate Relations of Taxation dated 30.08.2024 by Hon. Deputy Registrar Court. 2. The Respondent to pay costs of the application. Given Under my hand and seal of this Honourable court this 19th December, 2024 Deputy Registrar Employment And Labour Relations Court At Nairobi Given under my hand and Seal of this Court on 2025-01-07 00:00:00 Signed By: Hon. D.O. Mbeja (MR) (PM) (Administer Judgements)’(emphasis given) Order No. 1 in the Exparte Application seeks a similar prayer. The issue is res judicata and cannot be reopened by the court. The issue is settled as regards the prayer for the Order of Mandamus. The challenge of the execution process by the Respondent is thus overtaken by events. The court then finds the issue before is it one of non-compliance with the order of Mandamus issued by Honourable Justice Byram Ongaya on 19th December, 2024. 11.Only prayer no. 2 is available for the court to consider being – ‘An order Citing the respondent's officers namely Godfrey Akumali (the Nairobi County Secretary), Charles Kerich (the County Executive Committee Member In Charge Of Finance And Economіс Affairs) And Asha Abdi (the Chief Accouting Officer In Charge Of Finance) for failing to satisfy the payment of a total of Kshs. 2,909,066/= being a total of decretal sum of Kshs. 2,576,400.00/= plus cost of the suit of Kshs. 332,666/=. Despite the existence of decrees dated 30th August 2024, 19th December,2024 and certificate of taxation dated 30th August,2024.’ 12.The applicant submitted on the conditions of the grant of the Order of Mandamus, which issue I found was res judicata, Justice Ongaya having issued the Order of Mandamus on 19th December 2024. It was evident from the response of Asha Abdi that the decretal sum had not been satisfied despite the Order. The response alluded to internal processes that had nothing to do with the Exparte Applicant. I do find that the process under section 21 of the Government Proceedings Act ought to have been challenged in ELRC JR NO E056 of 2024, where the Order of Mandamus was issued. Likewise, the non-compliance of the Order dated 19th December 2024 ought to be challenged under that Order and not file a duplicate suit. This suit is declared res judicata. section 7 of the Civil Procedure Act defines resjudicata as follows-7.Res judicataNo court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.’ 13.The Exparte Application is declared as rejusdicata and struck out. The Ex parte Applicant ought to pursue compliance with the Order of Mandamus dated 19th December 2024 issued by Justice Ongaya in ELRC JR NO. E056 Of 2024. 14.The decretal sum remains unsatisfied. The court makes no order as to costs. 15.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: OtienoExparte Applicant -OderaRespondent- Achola