Republic v Maurice Otunga, County Executive Committee Member, Finance & another; Nyamori (Exparte Applicant) [2023] KEELRC 2976 (KLR)

Republic v Maurice Otunga, County Executive Committee Member, Finance & another; Nyamori (Exparte Applicant) (Judicial Review Application E022 of 2023) [2023] KEELRC 2976 (KLR) (22 November 2023) (Judgment)

Neutral citation: [2023] KEELRC 2976 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Judicial Review Application E022 of 2023

S Radido, J

November 22, 2023

IN THE MATTER OF AN APPLICATION FOR THE JUDICIAL REVIEW ORDER OF MANDAMUS AND IN THE MATTER OF IN THE ENFORCEMENT OF COURT ORDERS AND DECREE AGAINST THE GOVERNMENT AND IN THE MATTER OF THE LAW REFORM ACT AND IN THE MATTER OF THE GOVERNMENT PROCEEDINGS ACT

Between

Republic

Applicant

and

Maurice Otunga, County Executive Committee Member, Finance

1st Respondent

County Government of Migori

2nd Respondent

and

Erastus Onyango Nyamori

Exparte Applicant

Judgment

1. The Court granted Erastus Onyango Nyamori (the ex-parteapplicant) leave to commence judicial review proceedings against Maurice Otunga and the County Government of Migori on 19 June 2023.

2. The Motion was filed on 26 June 2023, and the Respondents filed on 25 August 2023 a replying affidavit sworn by the County Executive Committee Member Finance.

3. The Court gave directions on 26 September 2023 on the filing and exchange of submissions.

4. The ex-parte applicant’s submissions were filed on 6 November 2023 (should have been filed on or before 13 October 2023), while the Respondents filed their submissions on 26 October 2023.

5. The Court has considered the Motion, affidavits and submissions.

6. It is not in dispute that the Court entered judgment for the ex-parte applicant on 17 February 2021 in Kisumu Cause No. 308 of 2014, Erastus Onyango Nyamori v County Government of Migori & Ar. In the judgment, the Court awarded the ex-parteapplicant compensation of Kshs 3,600,000/- and gratuity to be computed.

7. A decree was issued on 18 May 2021 and a Certificate of Costs on 4 May 2023. The Certificate of Costs was followed with a Certificate of Order against the County Government on 9 May 2023.

8. In the affidavit by the County Executive Member, Finance, the Respondents took objection to the grant of the order of mandamus on the grounds that the ex-parte applicant had not met the test for grant of judicial review orders because the decree and Certificate of Order against the government had not been served.

9. The deponent also averred that the calculation of gratuity had been done by the ex-parte applicant without involving the Respondents and that in any case, the Respondents had not declined to settle the decree, but was handicapped by inadequate budgetary allocations presently.

10. The ex-parteapplicant has not responded to the assertions that he did not serve copies of the decree, Certificate of Costs and Certificate of Order against the government before invoking the court’s judicial review jurisdiction.

11. The ex-parte applicant has also not demonstrated how and/or the formula he used to compute the gratuity or whether the computations were made with reference to the Respondents.

12. Orders of judicial review may be declined even where there is merit.

13. It is not clear to the Court whether theex-parteapplicant approached the Respondents to settle before suing. The ex-parte applicant has taken a lackadaisical approach to these proceedings. He did not seek to respond to allegations of facts presented by the Respondents. He did not bother to file and serve submissions within the timelines agreed with the Court and no explanation has been tendered.

14. The ex-parte applicant moved the Court prematurely.

15. The Court declines the Motion and it is struck out with costs to the Respondents.

DELIVERED VIRTUALLY, DATED AND SIGNED IN MIGORI ON THIS 22NDDAY OF NOVEMBER 2023. RADIDO STEPHEN, MCiarbJUDGEAppearancesFor ex-parte applicant Ogwe & Associates AdvocatesFor Respondents Onyony & Co. AdvocatesCourt Assistant Chrispo Aura