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ELCPartially AllowedELCJR No E001 of 2022· [2023] KEELC 40 (KLR)

Republic v Chairman, National Land Commission & another; Ondino & 2 others (Exparte) (Environment and Land Judicial Review Case E001 of 2022) [2023] KEELC 40 (KLR)

Environment and Land Court
18 January 2023
1,198 words in judgment
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The bottom line

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The Land Court ordered government officials to remove cautions on Kakamega land and pay KShs 228,290 plus interest after they ignored a 2019 judgment.

What this practically means

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Executive summary

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The ex parte applicants, having obtained leave on January 27, 2022, moved the Court by Notice of Motion dated February 9, 2022 seeking an order of mandamus compelling the respondents jointly and severally to remove cautions on land parcels South Wanga/Ekero/2552, 2553 and 2554, to pay KShs 120,000 as mesne profits with interest from February 1, 2019, and to pay KShs 108,290 with interest from April 2, 2019, being certified costs. The applicants were plaintiffs in Mumias PM's ELC No 70 of 2018 in which judgment was entered against the respondents on February 1, 2019 for removal of cautions, mesne profits and costs. Certificates of costs and a Certificate of Order Against the Government were issued and served; demand and reminder letters followed without compliance. The respondents filed no response or submissions and did not attend the hearing. The court framed a single issue: whether the orders sought should issue. Applying the Gathenji principles on mandamus and Odunga J's holding in Koroso that a decree-holder barred from executing against the Government can only realise the fruits of judgment through mandamus, the court found the applicants' case unchallenged and satisfactory. Judgment was entered for the ex parte applicants and mandamus issued compelling the respondents to remove the cautions and pay both sums with interest. As the motion contained no prayer for costs, the court made no order as to costs. Judgment was delivered at Kakamega on January 18, 2023 by D. O. Ohungo J.

Key legal issues

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Whether mandamus should issue to compel the respondents to comply with a judgment against the Government

Holding

Mandamus issued compelling the respondents to remove the cautions and pay the decretal sums with interest

Reasoning

The ex parte applicants obtained judgment in Mumias PM's ELC No 70 of 2018 ordering removal of cautions, mesne profits and costs. Certificates of costs and of Order Against the Government were issued and served, and demand letters went unanswered. The respondents did not respond or appear. The court found the applicants had a statutory right to enforcement of the judgment and no other remedy since execution against the Government is barred, satisfying the principles in Gathenji and Koroso for mandamus.

p. 3

Legal principles established

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  • Mandamus will compel performance of a public duty imposed by statute where the person or body has failed to perform it to the detriment of a party with a legal right to expect performance
  • A decree-holder barred from executing against the Government has mandamus as the only means of realising the fruits of judgment, supported by the constitutional guarantee of access to justice

Court orders

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  1. 1.An order of mandamus compelling the respondents jointly and severally to remove the caution on Land Reference South Wanga/Ekero/2552, 2553 and 2554 forthwith
  2. 2.Respondents jointly and severally to pay KShs 120,000 with interest from February 1, 2019 (date of judgment) till payment in full
  3. 3.Respondents jointly and severally to pay KShs 108,290 with interest from April 2, 2019 (date of certificate of costs) till payment in full
  4. 4.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 48

Cases cited (2)

  • Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR
  • Republic v Attorney General & another Exparte James Alfred Koroso
    [2013] eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court (Environment and Land Court) under leave granted to apply for orders of mandamus; Article 48 of the Constitution invoked on access to justice

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 Chairman, National Land Commission & another; Ondino & 2 others (Exparte) (Environment and Land Judicial Review Case E001 of 2022) [2023] KEELC 40 (KLR)", Case Analysis (2023). ELCJR No E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/40/eng@2023-01-18

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