REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E407 OF 2025
FAITH WAMBUI FRANCIS……………………...EXPARTE APPLICANT
VERSUS
PRINCIPAL SECRETARY,
STATE DEPARTMENT FOR PUBLIC WORKS……...1 ST RESPONDENT
SOCIAL HEALTH AUTHORITY(SHA)……………....2 ND RESPONDENT
JUDGMENT
1. Pursuant to leave granted on 24 th November, 2025 in JR E228 of 2025, the exparte applicant herein, Faith Wambui Francis filed the substantive Notice of Motion specifically brought under Order 53 Rules 3 and 4 of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act and Article 47 of the Fair Administrative Action Act.
2. The Notice of Motion which is dated 15 th December, 2025 seeks the following orders:
a) That an order of mandamus do issue compelling the 1 st respondent to issue and release to the exparte applicant the requisite letter forwarding the claim for Last Expense and Group Life to the 2 nd Respondent.
b) That an order of mandamus be issued compelling the respondents to process the Last Expense and Group Life in favour of the Exparte applicant.
c) That the costs of this application be provided for.
3. The grounds upon which the application is predicated are that the late Justus Mworia Mbui who died on 16 th September, 2019 was a civil servant working with the State Department for Public Works at the time of his demise.
4. That the deceased declared the exparte applicant herein as his next of kin as per the Government Human Resource Information System (GHRIS) and that therefore it is the exparte applicant who is solely entitled to the Last Expense and Group Life Cover for civil servants, following the demise of her husband.\
5. That the exparte applicant completed all the requisite forms as required and submitted the claim to the 1 st respondent but that she was informed that she required a letter from the 1 st respondent forwarding the claim for Last Expense and Group Life to the 2 nd Respondent.
6. That she has followed up the matter with the 1 st respondent to no avail hence this application, as there is no justification for failure to issue her with a letter forwarding the claims documents to the 2 nd respondent for settlement of the claims.
7. She asserts that the refusal by the 1 st respondent to issue her with a letter without any reasons despite certifying that the applicant herein is the next of kin and an eligible beneficiary is unlawful, unreasonable, administratively unfair and contrary to the applicant’s legitimate expectations hence, this Court should grant her the orders sought in the interest of justice.
8. The application is supported by an affidavit sworn by the exparte applicant although as a norm, all she required was a statutory statement which is the main pleading in support of the application for leave to apply. The supporting affidavit nonetheless rehashes the statutory statement and the grounds reproduced hereinabove, adding that she is the named next of kin for the deceased and that she lodged the claim because Article 7 of the Handbook for provision of comprehensive medical cover, Group Life Cover and Last Expense cover for civil servants, an excerpt which she annexed, according to her, provides that the claims were payable to the next of kin hence the 1 st respondent should exercise its mandate and issue a letter to the 2 nd respondent to process the claims.
Responses to the application
9. Opposing the application and the prayers sought, the respondents filed replying affidavits independently. The 1 st respondent’s replying affidavit is sworn by Irene Murando Shuma on 21 st November, 2025 deposing that she is the Human Resource Management Assistant III at the 1 st Respondent and admits that Justus Mworia Mbui was an employee of the 1 st Respondent State Department. That he died on 16 th September, 2019.
10. Responding to the exparte applicant’s claims, the deponent states that the State Department did fill the required forms for processing of Last expense and Group Life Cover for the deceased on 14 th October, 2019 and has annexed copies of those forms. That Paragraph 7.1 of the Group Life Cover does not require the 1 st respondent to forward any letter to the 2 nd respondent as alleged.
11. According to the 1 st respondent, the forms forwarded to the Pensions Department had two beneficiaries of the deceased’s estate namely, Ann Wambui Nyaruiru and Faith Wambui Francis the exparte applicant herein, both of whom were paid the death gratuity in respect of the deceased officer on 29 th November, 2023 and that the alternative next of kin was Edwin Kirimi Mworia who was the son of the deceased.
12. The deponent annexed copies of a letter dated 29 th November, 2023 and death gratuity forms forwarded to the Pensions Department and the next of kin forms. She denied the allegations that the 1 st respondent had refused or failed to issue a letter as required by the 2 nd respondent’s predecessor handbook. In the letter, it was explained that the delay in submitting the claim forms was occasioned by a dispute between two families at Naivasha Court and it also confirmed that the deceased was also known by other alias names interchangeably.
13. The 2 nd respondent filed a replying affidavit sworn by Dr Mercy Mwangangi, the Chief Executive Officer of the 2 nd Respondent (SHA), The successor of NHIF. Although the affidavit cites JR E228 of 2025, the latter was a chamber summons for leave which Justice Chigiti SC granted exparte. The confusion must have arisen because the applicant served upon the respondents both applications, which is the requirement under Order 53 of the Civil procedure Rules. The anomaly is excusable and therefore as no prejudice will be occasioned to any party, the said replying affidavit sworn on 18 th November, 2025 is deemed to have been filed in these proceedings.
14. Dr. Mwangangi deposes that the exparte applicant has never submitted any forms or documentation for purposes of processing the claims relating to the deceased Justus Mbui Mworia and that neither has the 2 nd respondent received any claim forms from the 1 st respondent. According to the 2 nd respondent, the exparte applicant had not submitted the mandatory documents to enable them process the claim and those documents include:
a. A fully executed claim form;
b. A certified copy of death certificate;
c. Burial permit;
d. Identity Card or surrender of the Identity Card for the deceased;
e. Identity Card of the next of Kin;
f. Pay slips for the next of kin
g. Employer confirmation and benefit forwarding letter.
15. The 2 nd respondent’s deponent deposes that the 2 nd respondent Authority has established clear internal mechanisms, procedures and channels for lodging claims, all of which are publicly known and routinely applied to all claimants pursuing Last Expense and Group Life, which mechanisms the exparte applicant had not exhausted as stipulate din the Social Health Insurance Act, the Authority’s internal policies and general administrative law principles.
16. That had the exparte applicant submitted the required documents or invoked the internal mechanisms for resolving disputes, the matter could have been resolved without recourse to litigation. She deposes that accordingly, these proceedings are premature, misconceived and an abuse of court process.
17. It is further deposed that the Authority would only process and pay upon receipt of documents which are mandatory and to beneficiaries of deceased civil servants.
Submissions
18. The substantive notice of motion was canvassed orally on 10 th February, 2026. Mr. Chiuri counsel for the exparte applicant restated the mandamus orders sought in the notice of motion dated 15 th December, 2025. He submitted reiterated the contents of the grounds and supporting affidavit, maintaining that the applicant had completed all the required forms but that despite acknowledging her as the deceased’s next of kin, the 1 st respondent had refused to forward a letter to the 2 nd respondent. That the documents asked by the 2 nd respondent are in custody of the 1 st respondent and that both owe the applicant a statutory duty.
19. In response, Ms Gathenya counsel for the 1 st respondent submitted that from the GRHIS, although the applicant is named as next of kin, a child is also named and that the delay in submitting the forms for the claims was occasioned by the failure of the applicant to include the child of the deceased as a beneficiary. That negotiations had been initiated to include the child of the deceased but the same were not successful hence the delay. That the applicant cannot claim to be the sole beneficiary even if she was named as next of kin, there being another named alternative next of kin Edwin Kirimi Mworia and that it is in the interest of justice that all named beneficiaries are included in the Group Life Cover and last expense benefits.
20. On behalf of the 2 nd respondent, Ms Chesyna submitted agreeing with what Ms Gathenya had submitted and added that pension was paid to both the applicant and the other family after a protracted dispute and that once the parties agree, payment shall be effected.
21. In a rejoinder, Mr. Chiuri for the applicant submitted that the issues of pension are distinct from the Last expense and Group Life Cover and that distribution is neither here nor there. He cited Article 6 of the Human Resource Handbook for the 1 st respondent stating that it provides for payment to the next of kin and that the child, Bonface is not listed as next of kin hence he cannot be paid the last expense. He also cited Article 7 of the said Handbook.
22. I note that there are two persons named in the employer records, Edwin Kirimi Mworia as son and alternative next of kin and Bonface Mbui Mworia as child and dependant.
Analysis and Determination
23. I have considered the substantive notice of motion, the grounds in support, the statutory statement and the annextures thereto. I have also considered the replying affidavits fled by the two respondents and the respective parties’ counsel’s oral submissions.
24. In my humble view, the main issue for determination is whether the mandamus orders sought are available to the applicant. There are other ancillary questions that this Court will endeavour to answer, in resolving the above main issue. That said, it is important that I rehash the background to this matter before answering the questions that resolve the bigger issue.
25. It is undisputed that the applicant is the widow of a deceased Justus Mbui Mworia, a former employee of the 1 st respondent State Department, challenging a decision by the Respondents regarding the distribution of Group Life and Last Expenses employment benefits, which were administered by the now defunct National Hospital Insurance Fund (NHIF), the predecessor of Social Health Authority, (SHA).
26. The applicant claims that the 1 st respondent has refused to issue her with a letter addressed to the 2 nd respondent to settle the claims. She relies on the 1 st respondent’s Human Resource Handbook which provides for payment of Last Expense benefits to the next of kin to cater for funeral expenses and the Group life benefits payable to the next of kin.
27. The 1 st respondent on the other hand contends that the applicant wants to disinherit the son of the deceased, from another relationship, who was also listed as next of Kin/dependant as per the annexed GHRIS at page 6 of 7 section F where Mbui Bonface Mworia is named as a beneficiary for medical cover and as child, but only the applicant is named as next of kin. On the other hand, Edwin Kirimi Mbui is named as son in the particulars of next of kin, as an alternative next of kin.
28. The other undisputed fact is that one, Mbui Bonface Mworia is listed as a dependant in the form annexed by the 1 st respondent employer and Edwin Kirimi Mworia is named as alternative next of kin. However, the applicant argues that issues of pension gratuity are different from Last Expense and Group Life Cover benefits. The 1 st respondent contends that the pension dues were shared with the deceased’s son, albeit the applicant had initially refused to accept the fact of his dependency and therefore a beneficiary at first and that the dispute was protracted before final payment was effected.
29. The 2 nd respondent SHA, which ought to release the benefits claims, denies that it has received the claim forms and documentation as required under the law and policies governing its disposal of such benefits and asserts that once it receives the documentation required, it will settle the benefits.
30. I note that the son to the deceased, who is listed as a dependant, but not being the applicant’s child, and whose interests the 1 st respondent appears to be protecting, is not a party to these proceedings and has therefore not filed any response to the application for judicial review.
31. The big question is whether such a dispute, touching on entitlement to benefits, absence of a person of interest and who may directly be affected by any payments being made excluding him and whom the 1 st respondent claims has a beneficial interest thereto, can properly be resolved through judicial review proceedings and more specifically, by way of mandamus. The other questions are whether the failure to join the deceased’s son is fatal to the application; and finally, whether this Court may rely on prior determinations relating to pension and gratuity to determine the dispute on merit.
32. On whether questions of entitlement to benefits can be determined within judicial review proceedings, it is now settled that scope of judicial review in proceedings brought under Order 53 of the Civil Procedure Rules is concerned not with the merits of a decision, but with the legality, rationality and procedural fairness of the decision-making process.
33. The purpose of judicial review was set out by the Court of Appeal in the case of Municipal Council of Mombasa -vs- Republic & Umoja Consultants Ltd [2002] eKLR as follows:
“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters….The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.”
34. In Republic -vs- Kenya National Examinations Council Ex Parte Gathenji & Others [1997] eKLR, the Court of Appeal explained the principles applicable for an order of mandamus to issue as follows:
“…what is the scope and efficacy of an Order of Mandamus? Once again, we turn to Halsbury’s Laws of England, 4 th Edition Volume 1 at page 111 Paragraph 89. The learned treatise says:
“The order of mandamus is of most extensive remedial nature, and is in form, a command issuing from the High Court of Justice, directed to any person corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue to the end that justice may be done, in all cases where there is a specific legal right and not specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual…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…”
35. In Republic -vs- The Commissioner of Lands & Another Ex Parte Kithinji Murugu M’agere [2012] eKLR it was held that an order of mandamus is to be employed to enforce the performance of a public duty which is imperative, not optional or discretionary, with the authority concerned. Further that an order of mandamus may be issued to enforce a mandatory duty which may not necessarily be a statutory duty but which has “a public element” which may take any form.
36. In Republic -vs- Town Clerk, Kisumu Municipality Ex Parte East African Engineering Consultants [2007] 2 E.A, the Court stated that an order of mandamus compels a public officer to act in accordance with the law. As such the court will only issue an order of mandamus where it concludes that it is the only decision lawfully open to the public body and there is no other legal remedy available to remedy the infringement of a legal right.
37. From the above judicial pronouncements, and others not cited, an order of mandamus issues to compel the performance of a public duty imposed by law. However, the order does not lie where the duty is unclear; where there is an alternative effective remedy and I add that where the right claimed is contested.
38. The Applicant in these proceedings seeks mandamus orders against both respondents, on the basis that the two respondents have, in the case of the 1 st respondent, failed to issue a letter to the 2 nd respondent an employer confirmation letter and pay slips which are in the possession of the 1 st respondent for the 2 nd respondent to pay the Last expense and Group Life Cover benefits to the applicant who is next of kin and who is the declared eligible beneficiary of the said benefits.
39. The applicant maintains that the issue of pension having been shared with the other named dependant son of the deceased is distinct from the benefits being claimed and she insists that Dispute is one that involves the respondents performing their public duties.
40. Before I fully determine this question of whether mandamus is the appropriate remedy in the circumstances described above, I shall first determine the question of whether judicial review is the appropriate remedy where there exists an effective alternative dispute resolution mechanism.
41. The 2 nd respondent strongly opposed the applicant’s application, maintaining that it had not received any documentation requiring that it settles the claims and secondly, that the application herein was premature because there are established internal dispute resolution mechanisms for resolving such disputes which the applicant has by passed.
42. The established legal principle is that where an alternative and more appropriate remedy exists, the Court will ordinarily decline to exercise its judicial review jurisdiction.
43. In this case, Part VIII of SHA Act is on Dispute Resolution Tribunal and section 43 of the Act provides that:
(1)A person aggrieved by a decision made under this Act may, within one month from the date of the decision, appeal to the Dispute Resolution Tribunal for a review of such decision.
(2) The Tribunal may uphold, reverse, revoke or vary the decision of the Board appealed under subsection (1).
(3)A person who is not satisfied with an order made by the Tribunal under subsection (2) may appeal to the High Court within twenty-one days from the date the order is made.
44. Section 44 establishes the Dispute Resolution Tribunal and states:
44(1) There is established a Tribunal to be known as the Dispute Resolution Tribunal for the purpose of hearing and determining complaints, disputes and appeals in accordance with this Act or any other written law.
45. The applicant complains that the 2 nd respondent has refused to perform its public duty to process and pay her the Last expense and Group Life Cover benefits due to her as the declared next of kin for the deceased Justus Mbui Mworia. Under the intestate Succession children are recognized as automatic beneficiaries of a deceased person’s estate, whether maintained by their parents or not at the time of the parents’ demise.
46. Section 2 of the Fair Administrative Action Act defines "decision" to mean any administrative or quasi-judicial decision made, proposed to be made, or required to be made, as the case may be while "failure", in relation to the taking of a decision, includes a refusal to take the decision.
47. The alleged failure to process payment by the 2 nd respondent is therefore a failure to take an administrative action and is therefore governed by the Act, which implements Article 47 of the Constitution. Furthermore, the applicant brought the application under Article 47 of the Constitution, among other statutory and regulatory provisions.
48. Section 9 of the Fair Administrative Action Act provides that:
(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1).
(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
(5) A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.
49. Section 44 of the SHA Act establishes the Dispute Resolution Tribunal to hear and determine complaints against the Authority while section 43 provides that a person aggrieved by a decision made under this Act may, within one month from the date of the decision, appeal to the Dispute Resolution Tribunal for a review of such decision. The decision of the Tribunal is appealable to the High Court as a matter of right within the stipulated period.
50. On exhaustion of remedies, Courts have over time held that failure to exhaust the available alternative dispute resolution mechanism is fatal to the case where a party invokes the original jurisdiction of the Court. In MUTANGA TEA & COFFEE COMPANY LTD vs SHIKARA LIMITED & MUNICIPAL COUNCIL OF MOMBASA [2015] e KLR which decision was rendered on 31 st July 2015 after the enactment of the Fair Administrative Action Act, 2015 which came into effect on 17 th June, 2015, the Court of Appeal in dealing with the question of failure to exhaust the alternative dispute resolution mechanism stated as follows:
“We have carefully considered the provisions of the PPA and we do not see the basis of the argument that it contemplates the possibilities of some aggrieved parties sidestepping the provided elaborate dispute resolution procedures and taking their grievances directly to the High Court. Throughout the PPA refers to “any person aggrieved by a decision”. That aggrieved person, in our view, includes the owner of an adjacent property like the present appellant. In our reading of section 41(3) of the PPA against the other provisions of the Act, a person who is supposed to be served with a copy of the application for change of user or for development and is not so served is an aggrieved party within the meaning of the Act and is entitled to resort to the dispute resolution mechanism provided under the Act to agitate his grievance. He is not entitled to ignore the provisions of the Act and invoke the original jurisdiction of the High Court.
The EMCA takes a similar approach on matters of the Environment. Section 58 as read with the Second Schedule overrides all provisions of other laws (including the PPA) and requires any person undertaking, among others, a project involving an activity out of character with its surrounding, or a structure of a scale not in keeping with the surroundings or entailing major changes in land use to first undertake an environment impact assessment. Under the Environmental (Impact Assessment and Audit) Regulations 2003, in undertaking an environment impact assessment, all persons likely to be affected by the project must be consulted. In section 31 the Act establishes the Public Complaints Committee whose functions, among other things, is to investigate any allegations or complaints against any person relating to the condition of environment.
Like under the PPA, any person aggrieved by a decision of the Director General, of NEMA or of any of its Committees has a right of appeal to the National Environment Tribunal under section 129(2) of EMCA, which may confirm, set aside, or vary the impugned decision and make such order as it may deem fit. A decision of the Tribunal is, under section 130 appealable to the High Court.
The real question then becomes whether an aggrieved party can ignore these elaborate provisions in both the PPA and the EMCA and resort to the High Court, not in an appeal as provided, but in the first instance.
This Court has in the past emphasized the need for aggrieved parities to strictly follow any procedures that are specifically prescribed for resolution of particular disputes. SPEAKER OF THE NATIONAL ASSEMBLY V. KARUME (supra), was a 5(2)(b) application for stay of execution of an order of the High Court issued in judicial review proceedings rather than in a petition as required by the Constitution. In granting the order, the Court made the often-quoted statement that:
“[W]here there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
(See also KONES V. REPUBLIC & ANOTHER EX PARTE KIMANI WA NYOIKE & 4 OTHERS (2008) 3 KLR (ER) 296).
It is readily apparent that in those cases the Court was speaking to issues of the correct procedure rather than of the correct forum for resolution of a dispute. However, we entertain no doubt in our minds that the reasoning of the Court must apply with equal force to require an aggrieved party, where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, to resort to that mechanism first before purporting to invoke the inherent jurisdiction of the High Court.
The basis for that view is first that Article 159 (2) (c) of the Constitution has expressly recognized alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The use of the word “including” leaves no doubt that Article (159(2)(c) is not a closed catalogue. To the extent that the Constitution requires these forms of dispute resolution mechanisms to be promoted, usurpation of their jurisdiction by the High Court would not be promoting, but rather, undermining a clear constitutional objective. A holistic and purposive reading of the Constitution would therefore entail construing the unlimited original jurisdiction conferred on the High Court by Article 165(3)(a) of the Constitution in a way that will accommodate the alternative dispute resolution mechanisms.
Secondly, such alternative dispute resolution mechanisms normally have the advantage of ensuring that the issues in dispute are heard and determined by experts in the area; and that the dispute is resolved much more expeditiously and in a more cost-effective manner. In RICH PRODUCTIONS LTD. V. KENYA PIPELINE COMPANY & ANOTHER, PETITION NO. 173 OF 2014, the High Court explained why it must be slow to undermine prescribed alternative dispute resolution mechanisms thus:
“The reason why the Constitution and the law establish different institutions and mechanism for dispute resolution in different sectors is to ensure that such disputes as may arise are resolved by those with the technical competence and the jurisdiction to deal with them. While the Court retains the inherent and wide jurisdiction under Article 165 to supervise bodies such as the 2nd respondent, such supervision is limited in various respects, which I need, not go into here. Suffice to say that it (the court) cannot exercise such jurisdiction in circumstances where parties before it seeks to avoid mechanisms and processes provided by law, and convert the issues in dispute into constitutional issues when it is not.”
On the same reasoning, this Court, in REPUBLIC V. THE NATIONAL ENVIRONMENTAL MANAGEMENT AUTHORITY, CA NO. 84 OF 2010 upheld a decision of the High Court, which declined to entertain a judicial review application by a party who had a remedy, which he had not utilized, under the National Environment Tribunal. The Court reiterated that where Parliament has provided an alternative remedy in the form of a statutory appeal procedure, it is only in exceptional circumstances that an order of judicial review will be granted. More recently in VANIA INVESTMENT POOL LTD. V. CAPITAL MARKETS AUTHORITY & 8 OTHERS, CA NO 92 OF 2014 this Court also upheld a decision of the High Court in which the court declined to entertain a judicial review application by an applicant who had failed to first refer its
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IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E407 OF 2025
FAITH WAMBUI FRANCIS……………………...EXPARTE APPLICANT
VERSUS
PRINCIPAL SECRETARY,
STATE DEPARTMENT FOR PUBLIC WORKS……...1 ST RESPONDENT
SOCIAL HEALTH AUTHORITY(SHA)……………....2 ND RESPONDENT
JUDGMENT
1. Pursuant to leave granted on 24 th November, 2025 in JR E228 of 2025, the exparte applicant herein, Faith Wambui Francis filed the substantive Notice of Motion specifically brought under Order 53 Rules 3 and 4 of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act and Article 47 of the Fair Administrative Action Act.
2. The Notice of Motion which is dated 15 th December, 2025 seeks the following orders:
a) That an order of mandamus do issue compelling the 1 st respondent to issue and release to the exparte applicant the requisite letter forwarding the claim for Last Expense and Group Life to the 2 nd Respondent.
b) That an order of mandamus be issued compelling the respondents to process the Last Expense and Group Life in favour of the Exparte applicant.
c) That the costs of this application be provided for.
3. The grounds upon which the application is predicated are that the late Justus Mworia Mbui who died on 16 th September, 2019 was a civil servant working with the State Department for Public Works at the time of his demise.
4. That the deceased declared the exparte applicant herein as his next of kin as per the Government Human Resource Information System (GHRIS) and that therefore it is the exparte applicant who is solely entitled to the Last Expense and Group Life Cover for civil servants, following the demise of her husband.\
5. That the exparte applicant completed all the requisite forms as required and submitted the claim to the 1 st respondent but that she was informed that she required a letter from the 1 st respondent forwarding the claim for Last Expense and Group Life to the 2 nd Respondent.
6. That she has followed up the matter with the 1 st respondent to no avail hence this application, as there is no justification for failure to issue her with a letter forwarding the claims documents to the 2 nd respondent for settlement of the claims.
7. She asserts that the refusal by the 1 st respondent to issue her with a letter without any reasons despite certifying that the applicant herein is the next of kin and an eligible beneficiary is unlawful, unreasonable, administratively unfair and contrary to the applicant’s legitimate expectations hence, this Court should grant her the orders sought in the interest of justice.
8. The application is supported by an affidavit sworn by the exparte applicant although as a norm, all she required was a statutory statement which is the main pleading in support of the application for leave to apply. The supporting affidavit nonetheless rehashes the statutory statement and the grounds reproduced hereinabove, adding that she is the named next of kin for the deceased and that she lodged the claim because Article 7 of the Handbook for provision of comprehensive medical cover, Group Life Cover and Last Expense cover for civil servants, an excerpt which she annexed, according to her, provides that the claims were payable to the next of kin hence the 1 st respondent should exercise its mandate and issue a letter to the 2 nd respondent to process the claims.
Responses to the application
9. Opposing the application and the prayers sought, the respondents filed replying affidavits independently. The 1 st respondent’s replying affidavit is sworn by Irene Murando Shuma on 21 st November, 2025 deposing that she is the Human Resource Management Assistant III at the 1 st Respondent and admits that Justus Mworia Mbui was an employee of the 1 st Respondent State Department. That he died on 16 th September, 2019.
10. Responding to the exparte applicant’s claims, the deponent states that the State Department did fill the required forms for processing of Last expense and Group Life Cover for the deceased on 14 th October, 2019 and has annexed copies of those forms. That Paragraph 7.1 of the Group Life Cover does not require the 1 st respondent to forward any letter to the 2 nd respondent as alleged.
11. According to the 1 st respondent, the forms forwarded to the Pensions Department had two beneficiaries of the deceased’s estate namely, Ann Wambui Nyaruiru and Faith Wambui Francis the exparte applicant herein, both of whom were paid the death gratuity in respect of the deceased officer on 29 th November, 2023 and that the alternative next of kin was Edwin Kirimi Mworia who was the son of the deceased.
12. The deponent annexed copies of a letter dated 29 th November, 2023 and death gratuity forms forwarded to the Pensions Department and the next of kin forms. She denied the allegations that the 1 st respondent had refused or failed to issue a letter as required by the 2 nd respondent’s predecessor handbook. In the letter, it was explained that the delay in submitting the claim forms was occasioned by a dispute between two families at Naivasha Court and it also confirmed that the deceased was also known by other alias names interchangeably.
13. The 2 nd respondent filed a replying affidavit sworn by Dr Mercy Mwangangi, the Chief Executive Officer of the 2 nd Respondent (SHA), The successor of NHIF. Although the affidavit cites JR E228 of 2025, the latter was a chamber summons for leave which Justice Chigiti SC granted exparte. The confusion must have arisen because the applicant served upon the respondents both applications, which is the requirement under Order 53 of the Civil procedure Rules. The anomaly is excusable and therefore as no prejudice will be occasioned to any party, the said replying affidavit sworn on 18 th November, 2025 is deemed to have been filed in these proceedings.
14. Dr. Mwangangi deposes that the exparte applicant has never submitted any forms or documentation for purposes of processing the claims relating to the deceased Justus Mbui Mworia and that neither has the 2 nd respondent received any claim forms from the 1 st respondent. According to the 2 nd respondent, the exparte applicant had not submitted the mandatory documents to enable them process the claim and those documents include:
a. A fully executed claim form;
b. A certified copy of death certificate;
c. Burial permit;
d. Identity Card or surrender of the Identity Card for the deceased;
e. Identity Card of the next of Kin;
f. Pay slips for the next of kin
g. Employer confirmation and benefit forwarding letter.
15. The 2 nd respondent’s deponent deposes that the 2 nd respondent Authority has established clear internal mechanisms, procedures and channels for lodging claims, all of which are publicly known and routinely applied to all claimants pursuing Last Expense and Group Life, which mechanisms the exparte applicant had not exhausted as stipulate din the Social Health Insurance Act, the Authority’s internal policies and general administrative law principles.
16. That had the exparte applicant submitted the required documents or invoked the internal mechanisms for resolving disputes, the matter could have been resolved without recourse to litigation. She deposes that accordingly, these proceedings are premature, misconceived and an abuse of court process.
17. It is further deposed that the Authority would only process and pay upon receipt of documents which are mandatory and to beneficiaries of deceased civil servants.
Submissions
18. The substantive notice of motion was canvassed orally on 10 th February, 2026. Mr. Chiuri counsel for the exparte applicant restated the mandamus orders sought in the notice of motion dated 15 th December, 2025. He submitted reiterated the contents of the grounds and supporting affidavit, maintaining that the applicant had completed all the required forms but that despite acknowledging her as the deceased’s next of kin, the 1 st respondent had refused to forward a letter to the 2 nd respondent. That the documents asked by the 2 nd respondent are in custody of the 1 st respondent and that both owe the applicant a statutory duty.
19. In response, Ms Gathenya counsel for the 1 st respondent submitted that from the GRHIS, although the applicant is named as next of kin, a child is also named and that the delay in submitting the forms for the claims was occasioned by the failure of the applicant to include the child of the deceased as a beneficiary. That negotiations had been initiated to include the child of the deceased but the same were not successful hence the delay. That the applicant cannot claim to be the sole beneficiary even if she was named as next of kin, there being another named alternative next of kin Edwin Kirimi Mworia and that it is in the interest of justice that all named beneficiaries are included in the Group Life Cover and last expense benefits.
20. On behalf of the 2 nd respondent, Ms Chesyna submitted agreeing with what Ms Gathenya had submitted and added that pension was paid to both the applicant and the other family after a protracted dispute and that once the parties agree, payment shall be effected.
21. In a rejoinder, Mr. Chiuri for the applicant submitted that the issues of pension are distinct from the Last expense and Group Life Cover and that distribution is neither here nor there. He cited Article 6 of the Human Resource Handbook for the 1 st respondent stating that it provides for payment to the next of kin and that the child, Bonface is not listed as next of kin hence he cannot be paid the last expense. He also cited Article 7 of the said Handbook.
22. I note that there are two persons named in the employer records, Edwin Kirimi Mworia as son and alternative next of kin and Bonface Mbui Mworia as child and dependant.
Analysis and Determination
23. I have considered the substantive notice of motion, the grounds in support, the statutory statement and the annextures thereto. I have also considered the replying affidavits fled by the two respondents and the respective parties’ counsel’s oral submissions.
24. In my humble view, the main issue for determination is whether the mandamus orders sought are available to the applicant. There are other ancillary questions that this Court will endeavour to answer, in resolving the above main issue. That said, it is important that I rehash the background to this matter before answering the questions that resolve the bigger issue.
25. It is undisputed that the applicant is the widow of a deceased Justus Mbui Mworia, a former employee of the 1 st respondent State Department, challenging a decision by the Respondents regarding the distribution of Group Life and Last Expenses employment benefits, which were administered by the now defunct National Hospital Insurance Fund (NHIF), the predecessor of Social Health Authority, (SHA).
26. The applicant claims that the 1 st respondent has refused to issue her with a letter addressed to the 2 nd respondent to settle the claims. She relies on the 1 st respondent’s Human Resource Handbook which provides for payment of Last Expense benefits to the next of kin to cater for funeral expenses and the Group life benefits payable to the next of kin.
27. The 1 st respondent on the other hand contends that the applicant wants to disinherit the son of the deceased, from another relationship, who was also listed as next of Kin/dependant as per the annexed GHRIS at page 6 of 7 section F where Mbui Bonface Mworia is named as a beneficiary for medical cover and as child, but only the applicant is named as next of kin. On the other hand, Edwin Kirimi Mbui is named as son in the particulars of next of kin, as an alternative next of kin.
28. The other undisputed fact is that one, Mbui Bonface Mworia is listed as a dependant in the form annexed by the 1 st respondent employer and Edwin Kirimi Mworia is named as alternative next of kin. However, the applicant argues that issues of pension gratuity are different from Last Expense and Group Life Cover benefits. The 1 st respondent contends that the pension dues were shared with the deceased’s son, albeit the applicant had initially refused to accept the fact of his dependency and therefore a beneficiary at first and that the dispute was protracted before final payment was effected.
29. The 2 nd respondent SHA, which ought to release the benefits claims, denies that it has received the claim forms and documentation as required under the law and policies governing its disposal of such benefits and asserts that once it receives the documentation required, it will settle the benefits.
30. I note that the son to the deceased, who is listed as a dependant, but not being the applicant’s child, and whose interests the 1 st respondent appears to be protecting, is not a party to these proceedings and has therefore not filed any response to the application for judicial review.
31. The big question is whether such a dispute, touching on entitlement to benefits, absence of a person of interest and who may directly be affected by any payments being made excluding him and whom the 1 st respondent claims has a beneficial interest thereto, can properly be resolved through judicial review proceedings and more specifically, by way of mandamus. The other questions are whether the failure to join the deceased’s son is fatal to the application; and finally, whether this Court may rely on prior determinations relating to pension and gratuity to determine the dispute on merit.
32. On whether questions of entitlement to benefits can be determined within judicial review proceedings, it is now settled that scope of judicial review in proceedings brought under Order 53 of the Civil Procedure Rules is concerned not with the merits of a decision, but with the legality, rationality and procedural fairness of the decision-making process.
33. The purpose of judicial review was set out by the Court of Appeal in the case of Municipal Council of Mombasa -vs- Republic & Umoja Consultants Ltd [2002] eKLR as follows:
“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters….The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.”
34. In Republic -vs- Kenya National Examinations Council Ex Parte Gathenji & Others [1997] eKLR, the Court of Appeal explained the principles applicable for an order of mandamus to issue as follows:
“…what is the scope and efficacy of an Order of Mandamus? Once again, we turn to Halsbury’s Laws of England, 4 th Edition Volume 1 at page 111 Paragraph 89. The learned treatise says:
“The order of mandamus is of most extensive remedial nature, and is in form, a command issuing from the High Court of Justice, directed to any person corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue to the end that justice may be done, in all cases where there is a specific legal right and not specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual…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…”
35. In Republic -vs- The Commissioner of Lands & Another Ex Parte Kithinji Murugu M’agere [2012] eKLR it was held that an order of mandamus is to be employed to enforce the performance of a public duty which is imperative, not optional or discretionary, with the authority concerned. Further that an order of mandamus may be issued to enforce a mandatory duty which may not necessarily be a statutory duty but which has “a public element” which may take any form.
36. In Republic -vs- Town Clerk, Kisumu Municipality Ex Parte East African Engineering Consultants [2007] 2 E.A, the Court stated that an order of mandamus compels a public officer to act in accordance with the law. As such the court will only issue an order of mandamus where it concludes that it is the only decision lawfully open to the public body and there is no other legal remedy available to remedy the infringement of a legal right.
37. From the above judicial pronouncements, and others not cited, an order of mandamus issues to compel the performance of a public duty imposed by law. However, the order does not lie where the duty is unclear; where there is an alternative effective remedy and I add that where the right claimed is contested.
38. The Applicant in these proceedings seeks mandamus orders against both respondents, on the basis that the two respondents have, in the case of the 1 st respondent, failed to issue a letter to the 2 nd respondent an employer confirmation letter and pay slips which are in the possession of the 1 st respondent for the 2 nd respondent to pay the Last expense and Group Life Cover benefits to the applicant who is next of kin and who is the declared eligible beneficiary of the said benefits.
39. The applicant maintains that the issue of pension having been shared with the other named dependant son of the deceased is distinct from the benefits being claimed and she insists that Dispute is one that involves the respondents performing their public duties.
40. Before I fully determine this question of whether mandamus is the appropriate remedy in the circumstances described above, I shall first determine the question of whether judicial review is the appropriate remedy where there exists an effective alternative dispute resolution mechanism.
41. The 2 nd respondent strongly opposed the applicant’s application, maintaining that it had not received any documentation requiring that it settles the claims and secondly, that the application herein was premature because there are established internal dispute resolution mechanisms for resolving such disputes which the applicant has by passed.
42. The established legal principle is that where an alternative and more appropriate remedy exists, the Court will ordinarily decline to exercise its judicial review jurisdiction.
43. In this case, Part VIII of SHA Act is on Dispute Resolution Tribunal and section 43 of the Act provides that:
(1)A person aggrieved by a decision made under this Act may, within one month from the date of the decision, appeal to the Dispute Resolution Tribunal for a review of such decision.
(2) The Tribunal may uphold, reverse, revoke or vary the decision of the Board appealed under subsection (1).
(3)A person who is not satisfied with an order made by the Tribunal under subsection (2) may appeal to the High Court within twenty-one days from the date the order is made.
44. Section 44 establishes the Dispute Resolution Tribunal and states:
44(1) There is established a Tribunal to be known as the Dispute Resolution Tribunal for the purpose of hearing and determining complaints, disputes and appeals in accordance with this Act or any other written law.
45. The applicant complains that the 2 nd respondent has refused to perform its public duty to process and pay her the Last expense and Group Life Cover benefits due to her as the declared next of kin for the deceased Justus Mbui Mworia. Under the intestate Succession children are recognized as automatic beneficiaries of a deceased person’s estate, whether maintained by their parents or not at the time of the parents’ demise.
46. Section 2 of the Fair Administrative Action Act defines "decision" to mean any administrative or quasi-judicial decision made, proposed to be made, or required to be made, as the case may be while "failure", in relation to the taking of a decision, includes a refusal to take the decision.
47. The alleged failure to process payment by the 2 nd respondent is therefore a failure to take an administrative action and is therefore governed by the Act, which implements Article 47 of the Constitution. Furthermore, the applicant brought the application under Article 47 of the Constitution, among other statutory and regulatory provisions.
48. Section 9 of the Fair Administrative Action Act provides that:
(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1).
(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
(5) A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.
49. Section 44 of the SHA Act establishes the Dispute Resolution Tribunal to hear and determine complaints against the Authority while section 43 provides that a person aggrieved by a decision made under this Act may, within one month from the date of the decision, appeal to the Dispute Resolution Tribunal for a review of such decision. The decision of the Tribunal is appealable to the High Court as a matter of right within the stipulated period.
50. On exhaustion of remedies, Courts have over time held that failure to exhaust the available alternative dispute resolution mechanism is fatal to the case where a party invokes the original jurisdiction of the Court. In MUTANGA TEA & COFFEE COMPANY LTD vs SHIKARA LIMITED & MUNICIPAL COUNCIL OF MOMBASA [2015] e KLR which decision was rendered on 31 st July 2015 after the enactment of the Fair Administrative Action Act, 2015 which came into effect on 17 th June, 2015, the Court of Appeal in dealing with the question of failure to exhaust the alternative dispute resolution mechanism stated as follows:
“We have carefully considered the provisions of the PPA and we do not see the basis of the argument that it contemplates the possibilities of some aggrieved parties sidestepping the provided elaborate dispute resolution procedures and taking their grievances directly to the High Court. Throughout the PPA refers to “any person aggrieved by a decision”. That aggrieved person, in our view, includes the owner of an adjacent property like the present appellant. In our reading of section 41(3) of the PPA against the other provisions of the Act, a person who is supposed to be served with a copy of the application for change of user or for development and is not so served is an aggrieved party within the meaning of the Act and is entitled to resort to the dispute resolution mechanism provided under the Act to agitate his grievance. He is not entitled to ignore the provisions of the Act and invoke the original jurisdiction of the High Court.
The EMCA takes a similar approach on matters of the Environment. Section 58 as read with the Second Schedule overrides all provisions of other laws (including the PPA) and requires any person undertaking, among others, a project involving an activity out of character with its surrounding, or a structure of a scale not in keeping with the surroundings or entailing major changes in land use to first undertake an environment impact assessment. Under the Environmental (Impact Assessment and Audit) Regulations 2003, in undertaking an environment impact assessment, all persons likely to be affected by the project must be consulted. In section 31 the Act establishes the Public Complaints Committee whose functions, among other things, is to investigate any allegations or complaints against any person relating to the condition of environment.
Like under the PPA, any person aggrieved by a decision of the Director General, of NEMA or of any of its Committees has a right of appeal to the National Environment Tribunal under section 129(2) of EMCA, which may confirm, set aside, or vary the impugned decision and make such order as it may deem fit. A decision of the Tribunal is, under section 130 appealable to the High Court.
The real question then becomes whether an aggrieved party can ignore these elaborate provisions in both the PPA and the EMCA and resort to the High Court, not in an appeal as provided, but in the first instance.
This Court has in the past emphasized the need for aggrieved parities to strictly follow any procedures that are specifically prescribed for resolution of particular disputes. SPEAKER OF THE NATIONAL ASSEMBLY V. KARUME (supra), was a 5(2)(b) application for stay of execution of an order of the High Court issued in judicial review proceedings rather than in a petition as required by the Constitution. In granting the order, the Court made the often-quoted statement that:
“[W]here there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
(See also KONES V. REPUBLIC & ANOTHER EX PARTE KIMANI WA NYOIKE & 4 OTHERS (2008) 3 KLR (ER) 296).
It is readily apparent that in those cases the Court was speaking to issues of the correct procedure rather than of the correct forum for resolution of a dispute. However, we entertain no doubt in our minds that the reasoning of the Court must apply with equal force to require an aggrieved party, where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, to resort to that mechanism first before purporting to invoke the inherent jurisdiction of the High Court.
The basis for that view is first that Article 159 (2) (c) of the Constitution has expressly recognized alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The use of the word “including” leaves no doubt that Article (159(2)(c) is not a closed catalogue. To the extent that the Constitution requires these forms of dispute resolution mechanisms to be promoted, usurpation of their jurisdiction by the High Court would not be promoting, but rather, undermining a clear constitutional objective. A holistic and purposive reading of the Constitution would therefore entail construing the unlimited original jurisdiction conferred on the High Court by Article 165(3)(a) of the Constitution in a way that will accommodate the alternative dispute resolution mechanisms.
Secondly, such alternative dispute resolution mechanisms normally have the advantage of ensuring that the issues in dispute are heard and determined by experts in the area; and that the dispute is resolved much more expeditiously and in a more cost-effective manner. In RICH PRODUCTIONS LTD. V. KENYA PIPELINE COMPANY & ANOTHER, PETITION NO. 173 OF 2014, the High Court explained why it must be slow to undermine prescribed alternative dispute resolution mechanisms thus:
“The reason why the Constitution and the law establish different institutions and mechanism for dispute resolution in different sectors is to ensure that such disputes as may arise are resolved by those with the technical competence and the jurisdiction to deal with them. While the Court retains the inherent and wide jurisdiction under Article 165 to supervise bodies such as the 2nd respondent, such supervision is limited in various respects, which I need, not go into here. Suffice to say that it (the court) cannot exercise such jurisdiction in circumstances where parties before it seeks to avoid mechanisms and processes provided by law, and convert the issues in dispute into constitutional issues when it is not.”
On the same reasoning, this Court, in REPUBLIC V. THE NATIONAL ENVIRONMENTAL MANAGEMENT AUTHORITY, CA NO. 84 OF 2010 upheld a decision of the High Court, which declined to entertain a judicial review application by a party who had a remedy, which he had not utilized, under the National Environment Tribunal. The Court reiterated that where Parliament has provided an alternative remedy in the form of a statutory appeal procedure, it is only in exceptional circumstances that an order of judicial review will be granted. More recently in VANIA INVESTMENT POOL LTD. V. CAPITAL MARKETS AUTHORITY & 8 OTHERS, CA NO 92 OF 2014 this Court also upheld a decision of the High Court in which the court declined to entertain a judicial review application by an applicant who had failed to first refer its
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