[2015] KEHC 5983 (KLR)
The court found that the application for stay of execution of the mandamus orders was urgent and merited, given the risk of enforcement of orders for committal to civil jail and the applicant's contention that the mandamus orders may have materially varied the original decree. The court was satisfied that the...
Source-derived case information.
- Citation
- [2015] KEHC 5983 (KLR)
- Parties
- Applicant: Teachers Service Commission; Respondent: Simon P. Kamau & 19 Others; Respondent: Director, Pensions Department
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 18 of 2012
- Procedural Posture
- Judicial Review / Interlocutory Application for Stay Pending Review of Mandamus Orders
- Outcome
- interim stay of execution granted pending inter partes hearing
- Judges
- JK Mulwa
- Legal Topics
- Judicial Review, Mandamus Orders, Stay of Execution, Contempt of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teachers Service Commission
Applicant
Simon P. Kamau & 19 Others
Respondent
Director, Pensions Department
Respondent
Procedural Posture
Judicial Review / Interlocutory Application for Stay Pending Review of Mandamus Orders
Legal Issues
- 1 Whether the applicant is entitled to interim stay of execution of the mandamus orders pending hearing and determination of the substantive review application.
- 2 Whether the orders of mandamus issued materially varied the original decree in HCCC No. 65 of 2006.
- 3 Whether the applicant has complied with the original decree by liaising with the Pensions Department as required.
Ratio Decidendi
The court found that the application for stay of execution of the mandamus orders was urgent and merited, given the risk of enforcement of orders for committal to civil jail and the applicant's contention that the mandamus orders may have materially varied the original decree. The court was satisfied that the applicant had demonstrated sufficient grounds for interim relief pending the hearing and determination of the substantive application for review. Accordingly, the court granted the prayers for stay as sought in the application, pending inter partes hearing.
Court Disposition
interim stay of execution granted pending inter partes hearing
Orders
- Prayer 1, 2 and 6 of the application dated 18th March 2015 are granted.
- The applicant shall serve all parties for inter partes hearing on 28th May 2015.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
JUDICIAL REVIEW NO. 18 OF 2012
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW FOR ORDERS OF MANDAMUS
IN THE MATTER OF JUDGMENT IN NAKURU HCCC NO. 65 OF 2006
BETWEEN
SIMON P. KAMAU & 19 OTHERS..…….....……PLAINTIFFS/RESPONDENTS
VERSUS
TEACHERS SERVICE COMMISSION……..….…….DEFENDANT/APPLICANT
IN THE MATTER OF
REPUBLIC…………………………….........………....………………APPLICANT
VERSUS
THE DIRECTOR, PENSIONS DEPARTMENT……….….……….RESPONDENT
EX-PARTE
SIMON P. KAMAU AND 19 OTHERS………………….…….……….SUBJECTS
VERSUS
THE DIRECTOR, PENSIONS DEPARTMENT……….….…….…RESPONDENT
RULING
1. Before me is an application dated the 18th March 2015 and filed under Certificate of Urgency. The urgency as argued is that there are orders issued by this court for the arrest and committal to civil jail of the Applicant, and that the orders are in force and may be effected any time. It is these orders that the Applicant and Contemptnor seeks to stay pending the hearing and determination of the substantive application.
2. I have heard Advocate Mr. Nyamodi for the Contemptnor that he seeks an order to Review and set aside the orders of mandamus made on the 23rd April, 2012 and issued on the 24th April, 2012 that he submitted were issued pursuant to an alteration or variation of the substantive decree of the court in the Judgment in HCCC No. 65 of 2006 that gave rise to these Judicial Review proceedings. It is submitted that the Contemptnor complied with the said decree that decreed in Relief (b) …. provide that on the basis of the increment, the defendant to pay or liaise with the Pensions Department to pay, that the obligation to the Defendant was either to pay or liaise with the Pension Department to pay. The Applicant has urged that during the hearing, it will be urged that it is beyond the Contemptnors ability to pay the colossal sums as ordered by the court. The order for the Contemptnor to pay is said to be a material variation of the decree in the suit. It is further urged that the Contemptnor has liaised with the Director of Pensions and all other stakeholders who would make payment possible.
3. The court notes that the substantive motion seeks to review the orders of mandamus with a view to setting the said orders aside.
The Applicant seeks for interim orders of stay of execution or enforcement of its orders issued on the 23rd April 2012, 16th May 2014, 20th February 2015, 2nd March 2015 and 12th May 2015 pending the hearing and determination of the application.
4. I have considered the application and arguments by counsel.
I am satisfied that the application dated 18th March 2015 brought under certificate of urgency is urgent. I am persuaded that the interim orders sought are merited.
I therefore grant prayer 1, 2 and 6.
5. The Applicant shall serve all parties in these proceedings for interpartes hearing on the 28th May, 2015.
Dated, signed and delivered at Nakuru this 19th day of March, 2015
JANET MULWA
JUDGE
In the presence of:
Nyamodi & Gumbo for the Contemptnor/Applicant
Court clerk - Omondi