The ex parte applicant filed an application dated 18 March 2024 under the provisions of Section 3 of the Employment and Labour Relations Court Act, Rule 7(2) of the Employment and Labour Relations Court (Procedure) Rules, Section 8 of the Law Reform Act, Section 2, 3, 7 and 11 of the Fair Administrative Act seeking orders;
- An order of mandamus directed to the Permanent Secretary, Ministry of Education, the respondent herein, to compel the said respondent to settle and pay to the applicant the decretal sum awarded to the applicant in Kaloleni CM-ELRC No.E059 of 2021 Esther Rehema Omar v Board of Management, Mwandodo Secondary School.
- A declaration to issue that the respondent’s commission to settle and pay to the ex parte applicant the decretal sum awarded in Kaloleni CM-ELRC No.E059 of 2021 Esther Rehema Omar v Board of Management, Mwandodo Secondary School was and still is an improper exercise of its duty and powers.
- The costs of this application be provided for.
The application is supported by the Supporting Affidavit of the ex parte applicant and on the grounds that from 30 June 2013 to 10 May 2021 she was the employee of the respondent, a public school, as an accounts clerk. She was unfairly terminated in her employment and hence filed Kaloleni CM-ELRC No.E059 of 2021 Esther Rehema Omar v Board of Management, Mwandodo Secondary School. Judgment was delivered on 20 September 2023 in her favour with an award of Ksh.323, 050 plus costs and interests. Since the judgment was issued, the respondent has refused and neglected to make the payment. Despite several requests and letters being issued, there is no payment.
The ex parte applicant aver in the affidavit that she has since moved the trial court and had cost assessed and a Decree and Certificate of Order against the Government was issued on 14 March 2024 for the Sum of Ksh.441,042 being the decretal sum. The respondent has refused to pay in contravention of the right to fair administrative action as provided for under the Fair Administrative Act and leading to these proceedings.
The respondent was served through the office of the Attorney General but no response is filed. There is evidence of service and an Affidavit of Service is filed.
The ex parte applicant through the advocates attended court and relied on the filed application and affidavit.
Determination
The ex parte applicant has moved the court to secure her rights upon successful judgment in Kaloleni CM-ELRC No.E059 of 2021 Esther Rehema Omar v Board of Management, Mwandodo Secondary School. She is seeking orders of Mandamus, to compel the Respondent to pay the decretal sum of Ksh.441, 042. The ex parte applicant has a valid Certificate of Order against the respondent dated 14 March 2024.
The respondent is a public school and attending during the trial court proceedings was the State Counsel for the Attorney General.
Section 21(1) of the Government Proceedings Act provides:
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.
Further, Section 21 (3) of the said Act on the other hand provides;
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.
The ex parte applicant has used the judicial process to secure her rights and obtained a Decree dated 14 March 2024 22 and a Certificate of Order for Costs against the government thereof.
In the case of Republic v The Attorney General & Another ex parte James Alfred Koroso, the Court held that;
…in the present case the ex parte applicant has no other option of realising the fruits of his judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that he has been awarded is realised. Unless something is done he will forever be left babysitting his barren decree. This state of affairs cannot be allowed to prevail under our current Constitutional dispensation in light of the provisions of Article 48 of the Constitution which enjoins the State to ensure access to justice for all persons. Access to justice cannot be said to have been ensured when persons in whose favour judgements have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgement due to roadblocks placed on their paths by actions or inactions of public officers. Public offices, it must be remembered are held in trust for the people of Kenya and Public Officers must carry out their duties for the benefit of the people of the Republic of Kenya. To deny a citizen his/her lawful rights which have been decreed by a Court of competent jurisdiction is, in my view, unacceptable in a democratic society. Public officers must remember that under Article 129 of the Constitution, executive authority derives from the people of Kenya and is to be exercised in accordance with the Constitution in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit…
The institution of judicial review proceedings in the nature of mandamus cannot be equated with execution proceedings. In seeking an order for mandamus the applicant is seeking, not relief against the Government, but to compel a Government official to do what the Government, through Parliament, has directed him to do. The relief sought is not “execution or attachment or process in the nature thereof”. It is not sought to make any person “individually liable for any order for any payment” but merely to oblige a Government officer to pay, out of the funds provided by Parliament, a debt held to be due by the High Court, in accordance with a duty cast upon him by Parliament. …
The respondent as a public entity, through the accounting officer, the Permanent Secretary Ministry of Education owe a duty to the ex parte applicant to pay the decretal sum.
In mandamus cases, it is recognised that when statutory duty is cast upon a Public Officer in his official capacity and the duty is owed not to the State but to the public any person having a sufficient legal interest in the performance of the duty may apply to the Courts for an order of mandamus to enforce it. In other words, mandamus is a remedy through which a public officer is compelled to do a duty imposed upon him by the law as held in Republic v Attorney General & another Ex-Parte the Standard Limited & Baraza Limited [2018] eKLR.
Without any objections to the orders sought, in the interests of justice and to secure the ex parte applicant from incurring further costs, the orders sought are justified.
Accordingly, judgment is hereby entered for the ex parte applicant against the respondent who is directed to satisfy the following;
- The Certificate of Order against the Government dated 14 March 2024 for the sum of Ksh.441,042 issued in Kaloleni CM-ELRC No.E059 of 2021 Esther Rehema Omar v Board of Management, Mwandodo Secondary School.
- Payment within 21 days of this Ruling and Order;
- Costs of these proceedings to be borne by the respondent.
Delivered in open court at Mombasa on this 17 day of October 2024.
M. MBARŨ
JUDGE