Kenya Union of Clinical Officers & 76 others v County Secretary, County Government of Vihiga & another [2025] KEELRC 1121 (KLR)

Kenya Union of Clinical Officers & 76 others v County Secretary, County Government of Vihiga & another (Miscellaneous Application E001 of 2024) [2025] KEELRC 1121 (KLR) (3 April 2025) (Ruling)

Neutral citation: [2025] KEELRC 1121 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Bungoma

Miscellaneous Application E001 of 2024

DN Nderitu, J

April 3, 2025

Between

Kenya Union of Clinical Officers

1st Applicant

Walter Adoli Kisumba

2nd Applicant

Jumba Hosborn Kisato

3rd Applicant

Japheth Mutsami Mukabwa

4th Applicant

Rono Kipkoech

5th Applicant

Jacklyne Vugutsa

6th Applicant

Sizco Jebitok

7th Applicant

Elma Mukhanji

8th Applicant

Annaline Jebichy

9th Applicant

Everlyne Atieno Oloo

10th Applicant

Vonyoli Ibrahim

11th Applicant

Livingstone Ogola

12th Applicant

Vitalis Kasiba

13th Applicant

Nivah Muhatia

14th Applicant

Georgiadis Wafula Mukhwana

15th Applicant

Christopher Tunya

16th Applicant

Ezra Eric Omondi

17th Applicant

Caroline Nyandiga

18th Applicant

Tiema Andeso Pepetuah

19th Applicant

George Okoth

20th Applicant

Thomas Anyona

21st Applicant

Amoding Esther

22nd Applicant

Rono Bernard

23rd Applicant

Kevin Jumba

24th Applicant

Emmanuel Okoto

25th Applicant

Lilian Momanyi

26th Applicant

Nancy Akinyi Odipo

27th Applicant

Hellen Kadenyi Munde

28th Applicant

Caroline Oside

29th Applicant

Mailah Simwa

30th Applicant

Calvin Jones Atingo

31st Applicant

Karen Olesi

32nd Applicant

Brenda Kavele Lungaho

33rd Applicant

William Okur Odindo

34th Applicant

Brolin Kevin Omondi

35th Applicant

Cyrus Amena

36th Applicant

Dennis Riziki Akoyo

37th Applicant

Saul Esipira

38th Applicant

Otiso Kwamboka

39th Applicant

John Mahiva Savala

40th Applicant

Bill Caxton Endovo

41st Applicant

Benard Kungu Kariuki

42nd Applicant

Jairus Bahati Otanga

43rd Applicant

Odhiambo Abdala Yusuf

44th Applicant

Wycliffe Asenji Otano

45th Applicant

Nicholas Karani Esevwe

46th Applicant

Christine Anyango Odhiambo

47th Applicant

Nancy Kadenge Amadi

48th Applicant

Ngusale Bonface

49th Applicant

Nicholao Tenga

50th Applicant

Antony Eric Otieno

51st Applicant

Sebby Eddah Inyangu

52nd Applicant

Lilian Kadenyi

53rd Applicant

Caroline Kemunto Mokaya

54th Applicant

Millicent Aoko Obeiro

55th Applicant

Maryanne Kayasi

56th Applicant

Laurine Andemo Ambuzi

57th Applicant

Otiende Elizabeth Atieno

58th Applicant

Doreen Kamula Anono

59th Applicant

Susan Ngadima Agon

60th Applicant

Akolo Boaz

61st Applicant

Mark Karani Tabu

62nd Applicant

Musah Sakwa Ronald

63rd Applicant

Rhoda Cheloti

64th Applicant

Evans Oduory

65th Applicant

Kipkorir Stephen Kibwareng’

66th Applicant

Jackson Chagwa

67th Applicant

Elvis Amuni Isiaho

68th Applicant

Kayinzili Lindi

69th Applicant

Kimutai George

70th Applicant

Millycent Obindi Oside

71st Applicant

Ruth Gwaro

72nd Applicant

Brenda Amondi

73rd Applicant

Obino Tai Fred

74th Applicant

Shitandi Pauline Eshisila

75th Applicant

Akoya Rhinah Okwomi

76th Applicant

Lydia Nelima Andala

77th Applicant

and

County Secretary, County Government of Vihiga

1st Respondent

County Government of Vihiga

2nd Respondent

Ruling

I. Introduction 1. In a notice of motion (the application) dated 14th October, 2024 the applicants, through Kamau Kuria & Co Advocates, are seeking for the following orders –1. Thatan order of mandamus do issue compelling the respondents, to pay the Ex Parte Applicants an amount of Kshs. 128,653,594. 752/- (Kshs. 106,611,120/- as withheld salary arrears and Kshs. 5,027,340/- as costs) plus interest at 12% per annum from 26th May, 2023, till payment in full.2. Thatthe costs of the application be provided for.

2. The application is expressed to be brought under Articles 48 & 165 of the Constitution, Sections 8 & 9 of the Law Reform Act, Sections 7 & 11 of the Fair Administrative Actions Act, and Order 53 of the Civil Procedure Rules. It is supported with the statutory statement of facts dated 8th October, 2024 and the verifying affidavit of Hawkins Alingo sworn on even date with several annexures thereto.

3. In response to the application the respondents, represented by Tony Godia Advocate, filed a replying affidavit sworn by Ezekiel Ayiego sworn on 20th August, 2024.

4. Counsel for both parties addressed the court by way of written submissions. Mr. Munyori for the applicants filed written submissions dated 31st January, 2025 while Mr. Godia for the respondents filed submissions dated 24th February, 2025.

II. The Evidence 5. In the verifying affidavit it is deposed by Hawkins Alingo, the branch chairperson of the 1st applicant, that he has the authority to swear the same for and on behalf of all the applicants.

6. It is deposed that in Bungoma ELRC No. 32 of 2021 – Kenya Union of Clinical Officers & Others V County Government of Vihiga a judgment was rendered on 26th May, 2023 in the following terms –1. Thatit be and is hereby declared that the claimants save for the 1st claimant and those who had left were on the Respondent’s pay roll and their contracts were never terminated.2. That it be and is hereby declared that the process of absorption of the claimants to permanent status was ongoing under a centralized process in Nairobi and was 90% complete.3. That it be and is hereby declared that the County Public Service Board is vested with the exclusive mandate to employ and remove employees of the County Public Offices under Section 59 of the County Governments Act, 2012. 4.That it be and is hereby declared that the termination notices issued to the claimants by the County Secretary were null and void as they were issued without jurisdiction.5. That it be and is hereby declared that having served for over 6 months, the claimants are deemed to have had their terms converted to permanent and pensionable as per terms of appointments.6. That it be and is hereby declared that the verification process was justified.7. That the court declines to quash the purported invitation to attend the verification for qualifications and declares that the process is overtaken by events the court having held that the claimants after 6 months of service were deemed to be permanent employees.8. That an order do issue that the claim for permanent injunction be and is hereby declined.9. That an order do issue that the claim for damages for violation of constitutional rights be and is hereby declined.10. That it be and is hereby declared that the award of salary arrears with interests was adequate compensation.11. Thatit be and is hereby declared that the claimants having worked in the unpaid periods are entitled to their full salary as provided for under Section 19 of the Employment Act.12. That in view of discrepancies between oral testimonies of CW - 2 and CW - 3 of salary arrears, the parties shall reconcile within 21 days, outstanding salary arrears for the claimants and file in court consent payable salary arrears to each employee.13. That the claimants are entitled to reasonable costs to indemnify against the loss incurred by them in the claim based on illegal and now termination notices and arrears not paid.14. That the claimants are awarded interests from the dates of the judgment until payment in full.

7. A copy of the judgment impugned above is attached to the affidavit.

8. It is further deposed that in a ruling of 30th November, 2023 the County Government of Vihiga was held to be indebted to the applicants in the tune of Kshs106,027,120/= excluding accruing interest till payment in full. A copy of the impugned ruling is annexed.

9. It is deposed that costs were subsequently taxed at Kshs5,027,340/= on 28th August, 2024 and a certificate of costs issued on 3rd September, 2024. Documents in support of this deposition are annexed.

10. It is deposed that subsequently the lawyers on record for the applicants demanded payment and settlement of the amount due and payable to no avail and a certificate of order against the County Government of Vihiga the respondent in the said cause was issued on 25th September, 2024 in the sum of Kshs128,653,594. 752. It is deposed that the said certificate was served upon the respondents on even date. It is further deposed that the respondents in this application, for and on behalf of the County Government of Vihiga, have deliberately and adamantly failed, refused, and or neglected to settle the above amount that is now overdue, rendering the filing of this application absolutely necessary.

11. It is further deposed that since execution proceedings cannot be lawfully taken against the national or a county government, it is thus paramount that the respondents be compelled to make the requisite payments as the accounting officers under the Government Proceedings Act.

12. The foregoing contents are reiterated in the statutory statement of facts filed alongside the verifying affidavit.

13. In the replying affidavit it is admitted that judgment was entered in favour of the applicants as stated in the statement of facts and the verifying affidavit, summarized above. However, it is deposed that the respondents were aggrieved by the said judgment and have applied for stay of execution and leave to appeal out of time in the Court of Appeal in Kisumu Civil Application No. E243 of 2024 that is purportedly pending ruling.

14. The court is urged not to hear and determine this application before the Court of Appeal pronounces itself in the above-mentioned application as doing so may render the said application nugatory.

III. Submissions By Counsel 15. In the written submissions, counsel for the applicants reiterated the facts as set out in the statement of facts and the verifying affidavit summarized above. Further, counsel cited the provisions of Section 21(1) & (3) of the Government Proceedings Act arguing that the applicants have complied with the provisions therein and are deserving of the orders sought in the application.

16. Citing the High Court in Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR, it is submitted that in view of the deliberate and adamant refusal by the County Government of Vihiga to settle the amount due and payable the applicants have no option but to apply the law in enforcing the decree through this application. Further, counsel cited Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR. The two decisions cited above illuminate on the procedure applicable in enforcing money decrees against the national or county governments.

17. Counsel for the applicants cited other decisions including Republic v County Secretary, County Government of Kirinyaga & Executive Committee Member for Finance [2020] eKLR in demonstrating and confirming that the applicants have complied with the applicable law urging the court to grant the application as prayed. It is submitted that the respondents being the accounting officers of the county government owe a legal duty to the applicants to settle the decree and that the respondents have had enough time to act but they have failed, refused, and or neglected to act.

18. It is further submitted that by failing to act the respondents have contravened Article 10 of the Constitution. The court is referred to the decision in Republic V Principal Secretary, Ministry of Defence ex parte George Kariuki Waithaka (2018) eKLR in support of the arguments made in this regard. It is submitted that the respondents and the county government should not enjoy preferential treatment as to be allowed more than the due time to settle the decretal sum, interest, and costs. It is passionately and vehemently submitted that the respondents have had more than their due share of time to settle the matter but they have been indifferent and indolent.

19. On costs of the application, the court is urged to scrutinize the conduct of the respondents and find that it is their conduct that has necessitated the filing of the application and as such they should bear the costs of the same. The court is urged to be persuaded by the holding in Republic v Communication Authority of Kenya & Another ex parte Lega Advice Centre aka Kituo Cha Sheria [2015] eKLR. Further, the court is urged to consider and follow the reasoning of the Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR and find that the applicants should be awarded costs to recoup the expenses incurred in filing this application that has been occasioned by the (mis)conduct of the respondents.

20. Counsel for the respondents submitted that the subject matter hereof is the subject of an application before the Court of Appeal as alluded to elsewhere in this ruling. It is submitted and admitted that the facts as set out by the applicants are true and accurate. It is submitted that the application for stay of execution and leave to appeal out of time in the Court of Appeal is coming up for ruling on 9th May, 2025 and as such the court is urged to stay this instant ruling until after the Court of Appeal has rendered its ruling to avoid rendering the same nugatory.

IV. Issues For Determination 21. In my considered view there is only one main issue for determination in this application – Should the court allow the application as prayed and grant an order of mandamus compelling the respondents to settle the amounts due and payable to the applicants?

22. Upfront, the essential and relevant facts in this matter are not contested. That is to say that, the facts as stated by the applicants are admitted by the respondents in their totality. It is the applicants position that the respondents have deliberately and adamantly refused, failed, and or neglected to settle the decretal sum plus costs and interest as passed and ordered by the court in the impugned judgment.

23. Of course, the respondents are not contesting the fact that the judgment and the decree and costs were issued and ordered by a competent court as pleaded by the applicants. It is also not contested that the said monies are due and payable to the applicants as ordered.

24. The respondents’ argument is that there is an application that is pending a ruling in the Court of Appeal seeking for stay of execution and for leave for the County Government of Vihiga, the judgment-debtor, to appeal the impugned judgment and decree out of time. It is therefore a matter of fact that there is no order for stay of execution in force either from this court or from the Court of Appeal.

25. Although it is alleged in the submissions by counsel for the respondents that the application pending in the Court of Appeal is coming up for ruling on 9th May, 2025, there is no evidence in support of that position. However, even if the court was for a moment to assume that that was the position, my view is that that of itself is not a reason for arresting this ruling and, in any event, no application has been made to arrest this ruling pending the alleged ruling from the Court of Appeal.

26. The court has carefully and dutifully gone through the application, the evidence and materials placed before it by both sides, and the submissions by respective counsel. The court concurs with the sentiments expressed in Republic V Principal Secretary, Ministry of Defence Ex Parte George Kariuki Waithaka (2019) eKLR that once a judgment is passed and a decree drawn a decree-holder has a constitutional and legal right to execute the same even on the following day.

27. Likewise, the financial position of a judgment debtor may only be a mitigating factor in arguments on the terms and conditions of the settlement of the decree. It cannot be a defence and or a bar to insulate a judgment-debtor from being compelled to settle the decretal sum plus costs and interest.

28. The alleged ruling pending in the Court of Appeal for stay of execution and leave to appeal the judgment out of time is not of itself a reason for the respondent’s failure to settle the decree or offer adequate security for the due performance of the decree. In any event, if the Court of Appeal allows the said application for stay of execution, the same shall be binding on this court and the execution process shall be halted accordingly.

29. For now, evidently and clearly, the application as prayed is merited and hopefully this ruling shall bring this long-standing litigation to a logical conclusion. It is also hoped that the respondents shall see the logical and legal need and commonsense in bringing this litigation to an end.

30. The court has so far said enough in demonstrating that the application is merited.

31. On costs, it is evidently clear that these proceedings have been prompted and necessitated by the adamant failure and refusal by the respondents to settle the decree and or make reasonable proposals on how to settle the same. Costs follow the event and the applicants are accordingly awarded the costs of these proceedings.

V. Orders 32. The court makes the following orders –a.That an order of mandamus be and is hereby issued compelling the respondents to pay to the ex parte applicants a sum of Kshs128,653,594. 752 (salary arrears plus costs) plus interest on the same at court rates from 26th May, 2023 till payment in full.b.That the respondents shall settle the amounts due and payable or make acceptable proposals to the applicants within 60 days of this ruling.SUBPARA c.Costs of the application to the applicants.

DELIVERED VIRTUALLY, DATED, AND SIGNED AT BUNGOMA THIS 3RD DAY OF APRIL, 2025. ……………………DAVID NDERITUJUDGE