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ELCDismissedJudicial Review Application (Notice of Motion dated 11th October 2023), Nakuru· [2024] KEELC 689 (KLR)

Republic v County Government of Nakuru & 3 others; Ense Limited (Exparte Applicant) (Environment and Land Case Judicial Review Application 4 of 2023) [2024] KEELC 689 (KLR)

High Court of Kenya (Environment and Land Court)
15 February 2024
AOA.O. Ombwayo
1,466 words in judgment
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The bottom line

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The High Court refused to force Nakuru County officials to subdivide land because they were never parties to the original court order Ense Limited wanted enforced.

What this practically means

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Executive summary

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This was a judicial review application by Ense Limited, brought under Order 53 Rule 3(1) of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act, seeking an order of mandamus directed at the County Government of Nakuru, the County Secretary, the CEC Lands and Physical Planning and the County Director, Lands and Physical Planning, compelling them to approve and effect subdivision and registration of resultant subdivisions of land parcel No. Nakuru Municipality Block 23/108 in compliance with an order of 24th March 2023 in Nakuru ELC Civil Suit No. 146 of 2015, plus costs. The applicant, through the affidavit of its director Ibrahim Suraw Isaac, explained that it had been engaged in litigation with the PTA of Naka Primary School over the parcel, and that the ELC had ordered three acres excised and transferred to the school. Despite submitting subdivision documents and service of the order, the respondents had refused to act, which the applicant said was ultra vires. The respondents filed no response and no submissions were filed. The court framed a single issue: whether the orders sought could be granted. Relying on Republic v Kenya National Examinations Council ex parte Gathenji and related authorities, the court noted that mandamus commands only what the person directed is legally bound to perform. Crucially, the respondents were not parties to ELCC No. 146 of 2015, and the order of 24th March 2023 directed the ex parte applicant itself to excise and transfer the three acres. The applicant thus failed to lay a basis for the mandamus sought. The application was dismissed with no order as to costs, given the respondents' non-participation. Judgment was delivered virtually at Nakuru on 15th February 2024 by A.O. Ombwayo, Judge.

Key legal issues

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Whether mandamus could issue against the Respondents to enforce the order of 24th March 2023 in ELCC No. 146 of 2015

Holding

No; the application lacked merit and was dismissed

Reasoning

The court applied the settled principles in Republic v Kenya National Examinations Council ex parte Gathenji: mandamus compels performance of a public duty legally binding on the person directed, and commands no more than that party is bound to perform. The Respondents were not parties to the underlying suit and the order of 24th March 2023 directed the ex parte Applicant itself to excise and transfer three acres to Naka Primary School. The Applicant therefore failed to lay a basis for mandamus against the Respondents, and the unopposed application was dismissed.

p. 4

Legal principles established

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  • An order of mandamus compels performance of a public duty imposed by statute where the person or body has failed to perform the duty to the detriment of a party with a legal right to expect performance
  • A mandamus cannot command a party to do more than it is legally bound to perform, and will not lie against parties who are not subject to the underlying order

Court orders

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  1. 1.The ex parte Applicant's Notice of Motion application dated 11th October 2023 was dismissed with no order as to costs
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act and Order 53 Rule 3(1) of the Civil Procedure Rules

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 County Government of Nakuru & 3 others; Ense Limited (Exparte Applicant) (Environment and Land Case Judicial Review Application 4 of 2023) [2024] KEELC 689 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 11th October 2023), Nakuru. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/689/eng@2024-02-15

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