Republic v County Executive Committee, Finance Kakamega County Govenrment, Chief Finance Officer, Kakamega County Government & Governor, Kakamega County Government [2019] KEELRC 1971 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

JUDICIAL REVIEW NO. 7 OF 2018

(Before Hon.  Justice Mathews N. Nduma)

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR AN ORDER OF MANDAMUS

AND

IN THE MATTER OF THE COUNTY GOVERNMENT ACT, NO. 17 OF 2012

BETWEEN

REPUBLIC.......................................................................................APPLICANT

VERSUS

COUNTY EXECUTIVE COMMITTEE, FINANCE

KAKAMEGA COUNTY GOVENRMENT.......................1ST RESPONDENT

CHIEF FINANCE OFFICER, KAKAMEGA

COUNTY GOVERNMENT...............................................2ND RESPONDENT

THE GOVERNOR, KAKAMEGA COUNTY

GOVERNMENT................................................................3RD RESPONDENT

JUDGMENT

1. The applicant sought an executive order of mandamus in the following terms in the application dated 6th April 2018:-

“That an order of MANDAMUS be issued compelling the respondents to settle the decree in KISUMU ELRC NO. 26 OF 2015.  Jamin Shitsukane Muliru vs Kakamega County Government in full”.

The applicant further sought costs of the suit.

2. The application was opposed by a replying Affidavit of Moses L. Sande, The County Attorney in which he deposes that he knows of his own knowledge that the aforesaid Decree plus costs were satisfied in full through M/S Ong’anda and Associates Advocates.  That Kshs. 3,806,419 was wired to the Advocate’s account on 2nd July 2017 less tax of Kshs 1,080,000 which was remitted to KRA as can be seen on the payment voucher marked as “MLS’1’ and extract of payment from Central Bank of Kenya marked as “MLS ‘1’ (b) respectively.

3. That there is no balance outstanding from the court’s Decree as claimed by the Applicant.

4. The applicant did not file a further affidavit to contradict the aforesaid averments by the respondent.

5. The court is satisfied that the decree was satisfied by payment of the decretal sum of Kshs. 3,806,419 less taxation paid to KRA in the sum of Kshs. 1,080,000 which fact has not been controverted by the applicant.  M/S Ong’anda Advocate have not been enjoined in these proceedings for any lawful orders to issue against them.

6. If the applicant has a complaint on the actual amount paid by the advocates to the applicants, the matter ought to be taken up with the said advocates.

7. The orders sought against the respondents lack merit since they have discharged their obligations to the applicant.

8. The application is dismissed.

Judgment Dated, Signed and delivered this 21st day of March, 2019

Mathews N. Nduma

Judge

Appearances

Mr. Yogo for exparte applicant

Mr. Muleche for respondents

Chrispo – Court Clerk