Republic v Kisii County Government & another; Mogaka (Exparte) [2023] KEELRC 263 (KLR)

Republic v Kisii County Government & another; Mogaka (Exparte) (Judicial Review 11 of 2022) [2023] KEELRC 263 (KLR) (1 February 2023) (Judgment)

Neutral citation: [2023] KEELRC 263 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Judicial Review 11 of 2022

S Radido, J

February 1, 2023

Between

Republic

Applicant

and

Kisii County Government

1st Respondent

Kisii County Public Service Board

2nd Respondent

and

Naftali Mogaka

Exparte

(IN THE MATTER OF KERICHO EMPLOYMENT PETITION NO. 15 OF 2020 BETWEEN NAFTALI MOGAKA v KISII COUNTY GOVERNMENT & KISII COUNTY PUBLIC SERVICE BOARD)

Judgment

1. The Court granted Naftali Mogaka (ex-parte applicant) leave to commence judicial review proceedings against the County Government of Kisii and the County Public Service Board, Kisii on 29 September 2022.

2. On 20 October 2022, the ex-parte applicant filed a Motion seeking orders:(1)THAT a mandamus order does issue compelling the Respondents to comply fully with the judgment of Justice Onesmus Makau delivered on 28/4/2022 in Kericho ELRC No. 15 of 2020 between Naftali Mogaka v Kisii County Government & Anor to wit:(a)include the ex-parte applicant to their payroll forthwith.(b)pay the ex-parte applicant a sum of Kshs 1,168,858 being his salary and allowances less annual increment for March 2017 to June 2020 plus compound interest at the rate of 14% per annum from 28/4/2022 until payment in full.(c)To compute and pay the annual salary increments for the said period plus all his salary for the period after 1st July 202 plus compound interest at the rate of 14% per annum from 28/4/2022 until payment in full.(d)pay the applicant Kshs 1,000,000 being general damages for the violation of his constitutional rights under Articles 27,41, and 47 of the Constitution plus compound interest at the rate of 14% per annum from 28/4/2022 until payment in full.(2)The costs of this application and interest thereon be provided for.(3)Any other and further relief that this Honourable Court may deem fit and just to grant in the circumstances.

3. When the Motion was placed before the Court on 29 November 2022, the Respondents admitted service had been effected and requested for 7 days to respond.

4. The Court directed the Respondents to file and serve responses before 7 December 2022. The Court also directed the parties to file and exchange submissions.

5. The Respondents’ responses were not on record by the agreed timeline, while the ex-parte applicant filed his submissions on 20 December 2022.

6. The Court has considered the Motion and the submissions, and will grant orders as proposed in 1(a),(b),(c), and (d) as the Respondents did not put any material in opposition to the factual assertions.

7. The Court, however, declines to compound the interest as the trial Court did not award compounded interest.

8. The ex-parte applicant to have costs of the Motion.

DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 1STDAY OF FEBRUARY 2023. RADIDO STEPHEN, MCIARBJUDGEAPPEARANCESFor ex-parte applicant Musyoki Mogaka & Co. AdvocatesRespondents did not formally participateCourt Assistant Chrispo Aura