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ELCPartially AllowedEnvironment and Land Judicial Review Case E001 of 2023· [2023] KEELC 20451 (KLR)

Ochieng’ & another v Managing Director, Kenya Railways Corporation & 2 others

Environment and Land Court
28 September 2023
1,106 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on a chamber summons dated July 18, 2023 by which Amina Achieng’ Ochieng’ and Tilapia Beach Resort Limited sought leave to apply for judicial review orders of mandamus compelling three accounting officers - the Managing Director of Kenya Railways Corporation, the Principal Secretary for the Ministry of Interior and Coordination of National Government, and the Chief Finance Officer of the County Government of Kisumu - to pay them Kshs 76,873,366.00 plus costs and interest, aggregating Kshs 117,233,983/- as at July 17, 2023, pursuant to a judgment and decree of the Environment and Land Court delivered on February 24, 2022 in Kisumu ELC No 40 of 2019 and a certificate of order against the government issued October 3, 2022. The application was anchored on article 47 of the Constitution, sections 8 and 9 of the Law Reform Act, the Fair Administrative Actions Act and Order 53 of the Civil Procedure Rules. The 1st respondent opposed through a replying affidavit of Stanley Gitari, citing a pending appeal (Kisumu Court of Appeal Civil Appeal No E011 of 2022) and budgetary processes for sourcing funds. The other respondents filed no response. Asati J held that the applicants hold an unsettled decree, that the earlier stay of execution had lapsed for the respondents' non-compliance with its conditions, and that the 1st respondent's grounds were properly matters for the substantive application. Leave was granted, with the substantive application to be filed and served within 21 days and costs of the application to abide the substantive proceedings.

Key legal issues

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01

Entitlement to leave to apply for mandamus to enforce a decree against government entities

Holding

A decree-holder whose judgment remains unsettled, and whose stay order lapsed for non-compliance, satisfies Order 53 requirements for leave to seek mandamus against accounting officers

Reasoning

The court noted the applicants hold an unsatisfied decree from the ELC delivered February 24, 2022, with a certificate of order against the government. The stay of execution had lapsed due to the respondents' non-compliance with its conditions. The 1st respondent's explanations about budgetary processes were held to be substantive-application matters. The application therefore met Order 53 requirements and leave was granted.

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Legal principles established

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  • At leave stage under Order 53, grounds raised in opposition that go to the merits are matters for the substantive application, not the leave application

Court orders

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  1. 1.Leave granted to the applicants to apply for judicial review order of mandamus to compel the Managing Director, Kenya Railways Corporation, the Principal Secretary, Ministry of Interior and Coordination of National Government, and the Chief Officer, Finance, County Government of Kisumu, to pay the applicants Kshs 76,873,366.00 plus costs and interest, aggregating Kshs 117,233,983/- as at July 17, 2023, per the judgment and decree of February 24, 2022 and certificate of order against the government of October 3, 2022 in Kisumu ELC No 40 of 2019
  2. 2.The substantive application to be filed and served within 21 days
  3. 3.Costs of the application to abide the substantive judicial review proceedings

Authorities

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Legislation

  • Constitution of Kenya 2010article 47
  • Law Reform Actsections 8 and 9
  • Fair Administrative Actions Actsections 7, 8, 9 and 11(1)(f) and (2)
  • Civil Procedure RulesOrder 53, rule 1 (and proviso)
  • Government Proceedings Actnot specified
  • Kenya Railways Corporation Actnot specified
  • County Governments Actnot specified
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules; article 47 of the Constitution and the Fair Administrative Actions Act cited in the application

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, "Ochieng’ & another v Managing Director, Kenya Railways Corporation & 2 others", Case Analysis (2023). Environment and Land Judicial Review Case E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20451/eng@2023-09-28

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