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ELCDismissedChamber Summons dated 9/8/2018 (arising from ELC Petition No. 71 of 2014)· [2019] KEELC 205 (KLR)

Republic v County Government of Nairobi, Treasurer County Government of Nairobi & another Ex-parte Spephen Kamunge Wainaina & 2 others [2019] KEELC 205 (KLR)

Environment and Land Court
7 November 2019
EOE. O. Obaga
885 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The court refused to force Nairobi County to pay a court decree because the claim was before the pending bills committee and no outright refusal to pay existed.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Obaga J) determines a chamber summons dated 9/8/2018 in which the Ex-parte Applicants, registered owners of LR No.29/14882 (IR No.94183) at Embakasi, sought leave to institute judicial review proceedings by way of mandamus to compel the Respondents, principally the Nairobi City County Government, to satisfy a decree of KShs.172,500,000/= with costs granted in their favour in ELC Petition No. 71 of 2014 on 17/3/2017. The property had been taken over in 2005 by the Nairobi City Council, which erected a health centre without compensation. The application, initially filed in the Constitutional and Human Rights Division and transferred through the Judicial Review Division to the Environment and Land Court, was disposed of by consent through written submissions and further affidavits. The Respondents, through the acting County Attorney David Oseko, opposed the application, contending that the claim fell within the mandate of a committee gazetted on 9/3/2018 to scrutinise pending bills and claims, and that the Applicants should await its verdict. The court found that the decree had been served on the County Secretary, the County Attorney had queried only the 6% interest basis, and the claim was under consideration by the committee; there was no appeal against the decree and no outright refusal to pay. Mandamus was therefore unnecessary. The court declined to grant leave and dismissed the chamber summons with costs to the Respondents.

Key legal issues

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01

Whether leave should be granted to commence judicial review proceedings by way of mandamus against the Respondents

Holding

Leave was refused because the Respondents were not refusing to pay the decretal sum; the claim was under consideration by the gazetted pending bills committee and the decree was unappealed.

Reasoning

The court traced the correspondence: the decree was served on the County Secretary on 7/8/2017, the County Attorney queried only the 6% interest basis, and the claim was before the pending bills committee gazetted on 9/3/2018. In the absence of an outright refusal to honour an unappealed decree, mandamus was not the appropriate remedy, so the application for leave failed.

p. 2

Legal principles established

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  • A decree of the court that has not been appealed against cannot lawfully be refused settlement merely because it is under consideration by a pending bills committee
  • Mandamus by judicial review is only warranted where there is an outright refusal by a public body to perform a duty

Court orders

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  1. 1.Leave to commence judicial review proceedings in the nature of mandamus is declined
  2. 2.The chamber summons dated 9/8/2018 is dismissed
  3. 3.Costs of the application to the Respondents
Jurisdiction invoked
Not expressly stated; judicial review leave application transferred to the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v County Government of Nairobi, Treasurer County Government of Nairobi & another Ex-parte Spephen Kamunge Wainaina & 2 others [2019] KEELC 205 (KLR)", Case Analysis (2019). Chamber Summons dated 9/8/2018 (arising from ELC Petition No. 71 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/205/eng@2019-11-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.