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ELCStruck OutJudicial Review application pursuant to leave granted in ELCPJR No. E001 of 2023 (Notice of Motion dated 12th October 2023)· [2024] KEELC 17 (KLR)

Republic v Managing Director Kenya Railways Corporation & another; Ochieng & another (Exparte Applicants) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 17 (KLR)

Environment and Land Court of Kenya
18 January 2024
2,438 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court confirmed government officials must pay court-ordered compensation, but struck out the claim because the applicants filed their paperwork seven days late.

What this practically means

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Executive summary

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This Environment and Land Court decision at Kisumu arises from a judgment entered on 24th February 2022 by Ombwayo J in Kisumu ELC Suit No. 40 of 2019 awarding the two ex-parte applicants Kshs. 27,000,000 and Kshs. 49,873,366 respectively, plus interest and costs, against Kenya Railways Corporation, the County Government of Kisumu and the Attorney General. Costs were taxed at Kshs. 963,543.33 and a certificate of costs against the government was issued on 5th October 2022. The applicants then sought leave, granted by Asati J on 28th September 2023, to bring judicial review proceedings by way of mandamus against the Managing Director of Kenya Railways Corporation and the Principal Secretary, Ministry of Interior, requiring payment of Kshs. 76,873,366 plus costs and interest, an aggregate of Kshs. 117,233,983 as at 17th July 2023. The respondents did not respond to the substantive motion and it was urged as unopposed. The court, applying section 88 of the Kenya Railways Corporation Act and section 21 of the Government Proceedings Act, found that the respondents, as accounting officers, had a duty and obligation to settle the decretal amount, and that mandamus in principle compels performance of statutory public duties. Nevertheless, the court held that the application, though dated 12th October 2023, was filed on 26th October 2023, seven days after the 21-day leave period lapsed on 19th October 2023, making it incompetent and bad in law. Two other irregularities - filing the application as a new suit and serving the 1st respondent directly rather than through his advocates on record - were deemed curable. The application was struck out with costs to be in the cause.

Key legal issues

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Accounting officers' statutory duty to satisfy judgments against government and state corporations

Holding

It is not disputed that judgment was obtained and execution not stayed, and the applicants complied with section 21 of the Government Proceedings Act; hence the respondents as accounting officers have a duty and obligation to settle the decretal amount

Reasoning

Section 88 of the Kenya Railways Corporation Act obliges the Managing Director to cause payment of amounts awarded against the Corporation without delay, and section 21 of the Government Proceedings Act requires the accounting officer of the government department concerned to pay the amount appearing on the certificate of costs together with interest. The court found these provisions attracted on the facts, since the applicants had served the decree and certificate of costs. However, this finding could not save the procedurally defective application.

p. 4
02

Procedural competence of the judicial review application

Holding

The application was incompetent because it was filed after the expiry of the 21-day filing period imposed in the leave order; two further irregularities (filing as a new suit rather than in the leave file, and direct service on the 1st respondent instead of through his advocates on record) were curable and not fatal

Reasoning

Leave for judicial review was granted on 28th September 2023 on condition the substantive application be filed and served within 21 days. The motion, though dated 12th October 2023, was not filed until 26th October 2023, seven days after the leave lapsed on 19th October 2023. The application was therefore brought without leave and was incompetent. The filing-as-new-suit and service irregularities were noted but deemed non-fatal as curable with directions.

p. 5

Legal principles established

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  • An order of mandamus compels the performance of a public duty imposed on a person or body by statute where that person or body has failed to perform the duty to the detriment of a party with a legal right to expect its performance
  • A judicial review application must be filed within the period specified in the order granting leave; leave lapses if the application is not filed within that period, and an application filed thereafter is incompetent

Court orders

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  1. 1.The Notice of Motion application dated 12th October 2023 is struck out
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Kenya Railways Corporation ActSection 88
  • Government Proceedings ActSection 21

Cases cited (3)

  • Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR
  • Amina Achieng' Ochieng' & Another v Kenya Ports Authority & 3 Others, Kisumu ELC Suit No. 40 of 2019
  • Amina Achieng' Ochieng' & Another v The Managing Director Kenya Railways Corporation & 2 Others, ELCPJR No. E001 of 2023
Jurisdiction invoked
Judicial review (order of mandamus) pursuant to leave granted by Asati J on 28th September 2023 in ELCPJR No. E001 of 2023, under section 21 of the Government Proceedings Act (Cap 40) and section 88 of the Kenya Railways Corporation Act (Cap 397)

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 Managing Director Kenya Railways Corporation & another; Ochieng & another (Exparte Applicants) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 17 (KLR)", Case Analysis (2024). Judicial Review application pursuant to leave granted in ELCPJR No. E001 of 2023 (Notice of Motion dated 12th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/17/eng@2024-01-18

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