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ELCDismissedELC Judicial Review No. 53 of 2017· [2021] KEELC 3006 (KLR)

Republic v National Housing Corporation & 2 others Ex-Parties Gitonga Akotha & 2 others [2021] KEELC 3006 (KLR)

Environment and Land Court
31 May 2021
KBK. BOR
1,901 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to force the National Housing Corporation to issue house titles through judicial review, ruling the dispute was a private contract matter requiring an ordinary lawsuit.

What this practically means

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Executive summary

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Three ex-parte applicants, former tenant purchasers who had fully paid for residential units in the National Housing Corporation's Langata housing scheme on L.R. No. 106/251-261, Nairobi, sought an order of mandamus compelling the Corporation to issue original titles and share certificates in their names, pay stamp duty on the transfers, maintain the estate in good repair, ensure access to clean drinking water, and disclose information concerning the management agreement and estate accounts, invoking the Sectional Properties Act, the Housing Act, the Fair Administrative Actions Act and Articles 10, 35 and 40 of the Constitution. The Corporation opposed through its Chief Legal Officer, W.K.B Keitany, who deponed that the units were sold on tenant purchase terms, that a management company (NHC Langata Court One Limited, incorporated 7/7/2017) had been put in place, that purchasers were contractually liable for transfer costs, and that water supply was the responsibility of the Nairobi Water and Sewerage Company. It contended the dispute was purely contractual and outside the court's judicial review jurisdiction. Applying the Gathenji Njoroge formulation of mandamus, the court (K. Bor, J) held that the Corporation had not contracted as a public body nor discharged any public duty; the claim was one for specific performance enforceable by ordinary suit. The application dated 15/7/2017 was dismissed, with each party bearing its own costs. Judgment was delivered virtually at Nairobi on 31 May 2021.

Key legal issues

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01

Whether the dispute falls within the supervisory (public law) jurisdiction for purposes of judicial review

Holding

It does not; the claims arise from private contractual relationships and should have been pursued by ordinary suit

Reasoning

The court examined the sale agreements and found they were entered into by the National Housing Corporation as a willing seller of houses it had developed, not in discharge of any public duty. The relief sought - transfer of titles on completion of purchase, maintenance, water, and disclosure - was enforcement of contractual obligations, i.e. specific performance, which is a private law remedy outside the scope of mandamus.

p. 2
02

Whether mandamus should issue against the 1st Respondent

Holding

No, mandamus was declined because the duty claimed was contractual, not public

Reasoning

Relying on the Gathenji Njoroge formulation, mandamus commands performance of a public duty and issues where a specific legal right has no specific legal remedy. Here the Applicants had a contractual remedy (specific performance) in an ordinary suit; the absence of a public duty meant the supervisory jurisdiction was unavailable.

p. 3

Legal principles established

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  • Mandamus is a command directing a person, corporation or tribunal to do something which appertains to their office in the nature of a public duty, and will issue where there is a specific legal right and no specific legal remedy for enforcing that right

Court orders

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  1. 1.The court declines to grant the orders sought in the application dated 15/7/2017
  2. 2.Each party will bear its own costs

Authorities

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Legislation

  • Sectional Properties ActSection 17
  • Housing ActSection 3
  • Fair Administrative Actions ActSection 3
  • Law of Contract Actnull
  • Constitution of Kenya, 2010Articles 10, 35, 40

Cases cited (1)

  • Kenya National Examinations Council v Republic, Ex parte Geoffrey Gathenji Njoroge & 9 Others
    [1997] eKLR
Jurisdiction invoked
Judicial review supervisory jurisdiction of the High Court (ELC) over acts or decisions relating to the exercise of public duties

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 National Housing Corporation & 2 others Ex-Parties Gitonga Akotha & 2 others [2021] KEELC 3006 (KLR)", Case Analysis (2021). ELC Judicial Review No. 53 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3006/eng@2021-05-31

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