Simon P. Kamau & 19 Others v Teachers Service Commission [2015] KEHC 5983 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

JUDICIAL REVIEW NO. 18 OF 2012

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW FOR ORDERS OF MANDAMUS

IN THE MATTER OF JUDGMENT IN NAKURU HCCC NO. 65 OF 2006

BETWEEN

SIMON P. KAMAU & 19 OTHERS..…….....……PLAINTIFFS/RESPONDENTS

VERSUS

TEACHERS SERVICE COMMISSION……..….…….DEFENDANT/APPLICANT

IN THE MATTER OF

REPUBLIC…………………………….........………....………………APPLICANT

VERSUS

THE DIRECTOR, PENSIONS DEPARTMENT……….….……….RESPONDENT

EX-PARTE

SIMON P. KAMAU AND 19 OTHERS………………….…….……….SUBJECTS

VERSUS

THE DIRECTOR, PENSIONS DEPARTMENT……….….…….…RESPONDENT

RULING

1.       Before me is an application dated the 18th March 2015 and filed under   Certificate of Urgency.   The urgency as argued is that there are orders issued by this court for the arrest and committal to civil jail of the Applicant, and that the orders are in force and may be effected any  time.  It is these orders that the Applicant and Contemptnor seeks to stay pending the hearing and determination of the substantive application.

2.       I have heard Advocate Mr. Nyamodi for the Contemptnor that he  seeks an order to Review and set aside the orders of mandamus made on the 23rd April, 2012 and issued on the 24th April, 2012 that he submitted were issued pursuant to an alteration or variation of the  substantive decree of the court in the Judgment in HCCC No. 65 of  2006 that gave rise to these  Judicial Review proceedings.  It is submitted that the Contemptnor complied with the said decree that decreed in Relief (b) …. provide that on the basis of the increment,  the defendant to pay or liaise with the Pensions Department to pay, that the obligation to the Defendant was either to pay or liaise with the Pension Department to pay.  The Applicant has urged that during  the hearing, it will be urged that it is beyond the Contemptnors ability to pay the colossal sums as ordered by the court. The order for the Contemptnor to pay is said to be a material variation of the decree in  the suit.  It is further urged that the Contemptnor has liaised with   the Director of Pensions and all other stakeholders who would make payment possible.

3.       The court notes that the substantive motion seeks to review the orders  of mandamus with a view to setting the said orders aside.

The Applicant seeks for interim orders of stay of execution or enforcement of its orders issued on the 23rd April 2012, 16th May 2014, 20th February 2015, 2nd March 2015 and 12th May 2015 pending  the hearing and determination of the application.

4.       I have considered the application and arguments by counsel.

I am satisfied that the application dated 18th March 2015 brought   under certificate of urgency is urgent.   I am persuaded that the interim orders sought are merited.

I therefore grant prayer 1, 2 and 6.

5.       The Applicant shall serve all parties in these proceedings for interpartes hearing on the 28th May, 2015.

Dated, signed and delivered at Nakuru this 19th day of March, 2015

JANET MULWA

JUDGE

In the presence of:

Nyamodi & Gumbo for the Contemptnor/Applicant

Court clerk - Omondi