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ELCAllowedJudicial Review No. 2 of 2019· [2021] KEELC 4216 (KLR)

Republic v Ministry of Industry, Trade and Cooperatives & 2 others Ex parte Margaret Nelima Odhiambo [2021] KEELC 4216 (KLR)

Environment and Land Court
24 February 2021
AOA. Omollo
1,016 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered the government to pay Kshs.9.2 million plus interest for compulsorily acquired land, showing mandamus works to enforce decrees against the State.

What this practically means

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Executive summary

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The ex-parte applicant, Margaret Nelima Odhiambo, obtained leave on 17th October 2019 and filed an amended notice of motion dated 23rd January 2020 under Order 53 of the Civil Procedure Rules seeking an order of mandamus compelling the Ministry of Industry, Trade and Cooperatives and the National Land Commission to settle a decree of Kshs.9,200,000 plus taxed costs of Kshs.281,320 and interest at 14% per annum. The decree arose from the compulsory acquisition of her land, L.R No. Malaksi/Township/396, as adjudged in Bungoma ELC No. 103 of 2016. The State, through a replying affidavit by State Counsel Gilbert Tarus, opposed the application on two grounds: that the application should have been filed in Bungoma where the decree originated, and that an application dated 21st February 2020 to set aside the ex parte judgment was pending and would be rendered nugatory. The applicant responded that the Busia court had jurisdiction since the land sits on the Busia-Bungoma boundary and the Attorney General's office handling the litigation is in Kakamega, and that the set-aside application was dismissed on 24th July 2020. The State filed no submissions. The court held that no legal provision was cited to defeat its jurisdiction, applying sections 12 and 13 of the Civil Procedure Act, and that the dismissal of the set-aside application removed the only substantive obstacle. The court granted the mandamus as prayed, with costs of the application to the Interested Party.

Key legal issues

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01

Geographical jurisdiction of the Busia ELC over the mandamus application

Holding

The court had jurisdiction; no provision of law was cited to show it lacked jurisdiction, and under section 12 of the Civil Procedure Act a suit may be filed where the defendant resides or where the subject matter is situated, with the land on the Busia-Bungoma boundary and the AG's office in Kakamega.

Reasoning

The objection that the application should have been filed in Bungoma was met by the applicant's deposition that litigation for both counties is handled by the Attorney General's office in Kakamega, and that the suit land lies on the boundary of Busia and Bungoma counties. Section 12 permits filing where the defendant resides or where the subject matter is situated, and section 13 allows suit where any portion of the property lies. The State cited no legal provision barring this court's jurisdiction.

p. 2
02

Whether mandamus should issue to compel settlement of the decree

Holding

Yes. The only substantive objection (pending application to set aside the ex parte judgment) fell away when it was dismissed on 24/7/2020, leaving no sufficient grounds to oppose the orders sought.

Reasoning

The State's opposition rested on the pending application dated 21st February 2020 to set aside the ex parte judgment in Bungoma ELC No. 103 of 2016, which would be rendered nugatory if mandamus issued. That application was dismissed on 24th July 2020, removing the obstacle. The respondents did not deny the decree; the 1st respondent merely expressed dissatisfaction with the ex parte judgment. Mandamus therefore issued as prayed.

p. 2

Legal principles established

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  • A suit concerning immovable property situate within the jurisdiction of different courts may be instituted in any court within whose local limits any portion of the property is situate.
  • Once an application to set aside an ex parte decree is dismissed, nothing prevents the court from issuing mandamus to compel satisfaction of the decree.

Court orders

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  1. 1.An order of mandamus compelling the 1st and 2nd respondents to settle the decretal sum of Kshs.9,200,000 and costs of Kshs.281,320 with interest at 14% per annum from 28th March 2018 (date of judgment) and 12th October 2018 (date of taxation)
  2. 2.Costs of the application to be borne by the Interested Party

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 1 and 2
  • Constitution of Kenya, 2010Articles 22(1), 23(1), (3), 25(c)
  • Civil Procedure ActSection 12
  • Civil Procedure ActSection 13
Jurisdiction invoked
Order 53 Rules 1 and 2 of the Civil Procedure Rules; Constitution of Kenya 2010, Articles 22(1), 23(1), (3) and 25(c)

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 Ministry of Industry, Trade and Cooperatives & 2 others Ex parte Margaret Nelima Odhiambo [2021] KEELC 4216 (KLR)", Case Analysis (2021). Judicial Review No. 2 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4216/eng@2021-02-24

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