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ELCAllowedJudicial Review Miscellaneous Application E050 of 2022· [2023] KEELC 20176 (KLR)

Republic v National Land Commission; Wainaina & 2 others (Exparte Applicants)

Environment and Land Court
27 September 2023
JKJ G Kemei
3,256 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ordered the National Land Commission to pay KES 38.9 million, confirming independent commissions must still satisfy court judgments.

What this practically means

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Executive summary

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The ex parte applicants sought an order of mandamus compelling the Secretary of the National Land Commission, as its accounting officer, to pay a decretal sum of KES 38,914,300.80 arising from a judgment in Thika ELC Case No. 94 of 2018 delivered on 15/6/2020, together with taxed costs of KES 362,483.80, certified by a Certificate of Order against Government issued on 16/5/2022. The Respondent opposed, contending it did not commence the compulsory acquisition on its own initiative, had received no compensation funds from the County Government of Kiambu, and therefore could not satisfy the decree. The court directed parties to address whether Section 21 of the Government Proceedings Act applied to the NLC, whether its assets were protected from execution, and what methods of execution were available. Holding that the NLC, though an independent commission, is a state organ funded from the exchequer, and that the NLC Act provides no execution procedure, the court found Section 21 GPA applicable: no execution may issue against government, leaving mandamus against the accounting officer as the remedy. The Respondent's objections were held to be matters that should have been raised at the trial, the judgment remaining unappealed and unvacated. The application was allowed as prayed, with mandamus issuing and costs awarded to the Applicants.

Key legal issues

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01

Whether the National Land Commission is subject to Section 21 of the Government Proceedings Act

Holding

Yes. Though an independent commission, the NLC is a state organ funded from the exchequer with a public mandate, and since the NLC Act does not provide an execution procedure, Section 21 GPA applies.

Reasoning

The court found it undisputed that the NLC is a body corporate under Article 253 and a state organ under Article 260. Relying on Okiya Omtatah and Communications Commission of Kenya, it held that independence protects the Commission from interference but does not detach it from government. The NLC Act is silent on execution, so the GPA procedure applies.

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02

Whether mandamus can issue against the Secretary of the NLC as accounting officer

Holding

Yes. The Secretary is the accounting officer under Section 20(4) of the NLC Act and mandamus lies to compel payment of the certified decretal sum.

Reasoning

The applicants followed the GPA procedure: judgment of 15/6/2020, taxation on 11/5/2021, certificate of taxation and certificate of order against government issued 16/5/2022. No execution may issue against government under Section 21(4) GPA, leaving mandamus against the accounting officer as the remedy.

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03

Whether the Respondent could resist payment by contending it did not acquire the land and received no compensation funds

Holding

No. Such issues ought to have been canvassed at the hearing of the suit; the judgment remains unappealed and unvacated.

Reasoning

The Respondent argued it acquired the land on instruction and had not received compensation funds from the County Government of Kiambu. The court held these are matters for the suit itself, raised too late, and cannot defeat enforcement of an outstanding, unchallenged judgment.

Legal principles established

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  • Independent constitutional commissions are state organs and, where no execution procedure is provided in their constituting statute, Section 21 of the Government Proceedings Act governs enforcement of decrees against them through mandamus against the accounting officer.

Court orders

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  1. 1.An order of mandamus directed to the Secretary of the Respondent (NLC) as its accounting officer compelling him/her to pay the ex-parte Applicants the decretal sum of KES 38,914,300.80 in Thika ELC Case No. 94 of 2018
  2. 2.Costs in favour of the Applicants

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 20, 22, 23, 47, 48, 50, 67, 165, 248, 250(12), 253, 260
  • Government Proceedings ActSection 21
  • National Land Commission ActSections 20(3) & (4)
  • Fair Administrative Actions ActSections 3, 4, 5, 6, 7, 8, 11(1)(f), 11(2)(a)
  • Land ActSections 107(1), 111(1A)

Cases cited (5)

  • Vivo Energy Ltd (formerly Kenya Shell Ltd) v National Land Commission
    [2020] eKLR

    Application and efficacy of the writ of mandamus

  • Okiya Omtatah Okoiti & Anor v AG & 7 Others
    [2023] eKLR

    Commissions and independent offices are part of the national government structure

  • Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others
    [2014] eKLR

    Meaning and purpose of the independence clause for constitutional commissions

  • Retirement Benefits Scheme v Attorney General & 3 Others
    [2017] eKLR

    Test for determining a government body subject to GPA (cited by Respondent)

  • Shetty v Airport Authority of India & others
    [1979] 1 SRC 1042

    Test for whether a body is government (cited by Respondent)

Jurisdiction invoked
Articles 20, 22, 23, 47, 48, 50, 67, 165, 250(12), 253 & 260 of the Constitution; Section 21 of the Government Proceedings Act; Section 20(3) & (4) of the National Land Commission Act; Sections 3-8 of the Fair Administrative Actions Act

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 Land Commission; Wainaina & 2 others (Exparte Applicants)", Case Analysis (2023). Judicial Review Miscellaneous Application E050 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20176/eng@2023-09-27

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