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ELCPartially AllowedEnvironment and Land Court Judicial Review Application E003 of 2022· [2023] KEELC 16073 (KLR)
Republic v County Government of Busia; Osinya (Exparte Applicant)
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The ex-parte applicant, Dismas Egesa Osinya, had earlier sued the County Government of Busia in Busia ELC Case No 23 of 2009 for compensation after part of his land, parcel No Bukhayo/mundika/7883, was converted for a sewage system and his parents' remains exhumed. On January 26, 2022, Omollo J directed the county government to pay him Kshs 4,500,000, with costs later taxed at Kshs 140,915. The decree remained unsatisfied, prompting this judicial review application for an order of mandamus compelling the respondent to settle the decretal sum, taxed costs, and interest at 12% per annum from the date of judgment. The respondent filed neither a response nor submissions. Applying the Court of Appeal's exposition of mandamus in Kenya National Examination Council v R exparte Geoffrey Gathenji Njoroge, and noting the obligation under section 21 of the Government Proceedings Act to satisfy judgments against the government, Olao J held that the respondent's conduct amounted to refusal, not inability, to pay. No appeal had been lodged against the underlying judgment. The court issued an order of mandamus compelling the respondent to pay the principal sum of Kshs 4,500,000 plus taxed costs of Kshs 140,915 with interest at court rates, and awarded the costs of the application to the applicant. Judgment was delivered electronically on February 21, 2023, with a right of appeal reserved.
Key legal issues
#01
Whether mandamus lies to compel a county government to satisfy a decree against it
Holding
Yes; the respondent was obliged under section 21 of the Government Proceedings Act to satisfy the decree, and its failure to respond established refusal, not inability, to pay
Reasoning
The court noted the unappealed judgment of Omollo J awarding Kshs 4,500,000 and taxed costs of Kshs 140,915. Citing Kenya National Examination Council v R exparte Geoffrey Gathenji Njoroge, it held mandamus is the remedy where a public duty is unfulfilled. The respondent's non-response meant the court could not doubt that statutory demand provisions had been complied with, and its indifference evidenced refusal rather than inability to pay.
p. 2
Legal principles established
#- Mandamus will issue where there is a specific legal right and no specific legal remedy for enforcing it, or where an alternative remedy is less convenient, beneficial and effectual
- A public authority obliged under section 21 of the Government Proceedings Act to satisfy a decree may be compelled by mandamus where its conduct amounts to refusal rather than inability to pay
Court orders
#- 1.An order of mandamus compelling the respondent to settle the decretal sum of Kshs 4,500,000 plus costs of Kshs 140,915 as ordered in Busia Elc case No 23 of 2009 plus interest at court rates
- 2.The respondent to meet the costs of this application
- Jurisdiction invoked
- Judicial review (mandamus) jurisdiction of the Environment and Land Court following leave granted in Busia Elc Misc Application No E006 of 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Government of Busia; Osinya (Exparte Applicant)", Case Analysis (2023). Environment and Land Court Judicial Review Application E003 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16073/eng@2023-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.