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ELCAllowedMeru ELC Judicial Review (Mandamus) application arising from Nkubu PMCC No. 88 of 2007· [2020] KEELC 2427 (KLR)

Monica Kajuju & another v Principal Seceretary Ministry of Interior & Coordination of National Government & another [2020] KEELC 2427 (KLR)

Environment and Land Court
20 May 2020
LMLucy N. Mbugua
1,112 words in judgment
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The bottom line

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The Environment and Land Court ordered Meru County officials to obey a 2012 court decree within four months or face civil jail.

What this practically means

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Executive summary

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The Ex-parte Applicants, joint owners of plot No. 293 Nkubu Market, obtained a judgment and decree in their favour in Nkubu PMCC No. 88 of 2007 (decree dated 13/6/2012) after Administration Police occupied their plot in 2007. Having been granted leave by this court's ruling of 20.3.2019, they moved by substantive Notice of Motion filed 10.4.2019 seeking an order of mandamus compelling the respondents to satisfy the decree, with committal to civil jail in default, plus costs. The application was opposed through the replying affidavit of Daniel Mugo Gichiri, Deputy County Commissioner, Imenti South, who asserted that the judgment was obtained by misrepresentation of facts, that plot 293 Nkubu Market does not exist in the Meru Central Land Registry or on the ground, and that the trial court had dismissed two of the applicants' execution applications. The respondents argued the criteria for mandamus had not been met. Framing the sole issue as whether mandamus should issue to compel compliance with the decree, the court, applying the Municipal Council of Mombasa principle that judicial review concerns the decision-making process rather than merits, held that the respondents were in effect challenging the magistrate's decision without having lodged an appeal or review, which cannot be done through judicial review. Finding the prayers merited, the court issued an order of mandamus compelling compliance with the decree, ordered committal to civil jail in default, allowed a compliance period of four months due to the Covid-19 pandemic, and condemned the respondents to pay the costs of the suit. The ruling was delivered electronically pursuant to the Chief Justice's Covid-19 practice directions.

Key legal issues

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01

Whether mandamus could issue to compel compliance with an unexecuted decree

Holding

Mandamus issued because the respondents never appealed or sought review of the decree, and efforts to execute it had been resisted by police officers.

Reasoning

The court held that the decree in Nkubu PMCC No. 88 of 2007 had been decided in the applicants' favour and had never been set aside on appeal or review. The respondents' only defence - that the decree was obtained by misrepresentation and that plot 293 does not exist in the registry or on the ground - was an attack on the merits of the magistrate's decision, which is impermissible in judicial review proceedings. The court cannot clothe itself with appellate attire; hence the decree holder could not be left without a remedy.

p. 2
02

Whether the respondents' assertion that the plot does not exist could defeat mandamus

Holding

Rejected; the respondents were challenging the decision of the trial magistrate, which can only be done by review or appeal.

Reasoning

The respondents contended that the judgment and decree were obtained through misrepresentation of facts and that plot 293 Nkubu Market does not exist in the Meru Central Land Registry records or on the ground. The court held this went to the merits of the decision rather than the legality of the decision-making process. Since no review or appeal had been lodged, this contention could not avail the respondents in judicial review proceedings seeking mandamus.

p. 2

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision; the merits can only be challenged on appeal or review.
  • A court should ensure a decree holder in a magistrate's court judgment is not left without a remedy.

Court orders

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  1. 1.A Judicial Review order of mandamus is issued against the respondents compelling them to comply with the court decree dated 13/6/2012 issued in Nkubu PMCC No. 88 of 2007
  2. 2.In default of compliance, the Respondents are to be committed to Civil jail until full compliance with the said decree
  3. 3.Compliance period pegged at 4 months in light of the Covid-19 pandemic
  4. 4.The Respondents are condemned to pay costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1

Cases cited (4)

  • Republic vs. Kenya National Examination Council Ex-parte Gathenji & Others
    Civil Appeal No. 234 of 1996
  • Republic vs. Town Clerk of Webuye County Council & Another
    (2014) eKLR
  • Republic vs. Kenya Revenue Authority Ex-parte Yaya Towers Limited
    (2003) eKLR
  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
Jurisdiction invoked
Judicial review (order of mandamus) following leave granted by the ELC; decree in Nkubu PMCC No. 88 of 2007

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, "Monica Kajuju & another v Principal Seceretary Ministry of Interior & Coordination of National Government & another [2020] KEELC 2427 (KLR)", Case Analysis (2020). Meru ELC Judicial Review (Mandamus) application arising from Nkubu PMCC No. 88 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2427/eng@2020-05-20

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