Five Star Agencies Ltd & another v National Land Commission & 2 others (Civil Appeal E290 & 328 of 2023 (Consolidated)) [2024] KECA 439 (KLR)

The court read Order 23 rule 1 together with Order 29 Rule 2(c) of the Civil Procedure Rules, which bars attachment of debts orders against the Government. Section 21(4) of the Government Proceedings Act prohibits execution against the Government. The rationale, drawn from Kisya Investments Ltd, is parliamentary control over public expenditure. The NLC's governmental character was uncontested. Five Star's right to prompt compensation under Article 40(3)(b)(i) is affirmed, but the remedy lies through the statutory procedure, not garnishee.

Before issuing mandamus compelling satisfaction of a decree against the Government, the court must satisfy itself that the section 21 procedure was followed: a certificate of order (and costs) against the Government issued after 21 days and served on the relevant entity, followed by a demand for payment. Five Star served only the decree, not the certificate. The trial court did not verify compliance with this condition precedent, so the mandamus ought not to have issued.

Applying Order 1 rule 10(2) and the necessary/proper party distinction in Kingori v Chege and Deported Asians Custodian Board v Jaffer Brothers, the court examined each party's statutory role under the Kenya Roads Act and the Land Act. The NLC alone conducts acquisition, valuation and payment. KENHA's awareness of the decree since 2017 and six-year delay in applying further weighed against setting aside. Its Article 50 fair-hearing claim therefore had no basis.

Having found KENHA was not a necessary party and that its role in the acquisition was limited by sections 107, 111(1A) and 113 of the Land Act, the court concluded that the acquiring entity lacked standing to intervene to protect funds in the NLC's special compensation account. The dispute was primarily between the NLC, the entity mandated to acquire land, and Five Star, whose land was acquired on KENHA's behalf.