Republic v County Executive Committee Member Nakuru County, Department of Land, Physical Planning, Housing & Urban Development; Njoka & 3 others (Interested Parties); Njoka (Exparte) (Environment and Land Judicial Review Case 1 of 2024) [2024] KEELC 4423 (KLR)
The bottom line
#The High Court refused to force Nakuru County to act against an illegal builder because the county had already issued enforcement orders.
What this practically means
#Executive summary
#Key legal issues
#Whether the Ex-parte Applicant is entitled to an order of mandamus
The application was dismissed because the Respondent had already undertaken the enforcement process mandated by section 72 of the Physical and Land Use Planning Act, 2019
The court examined the Respondent's replying affidavit showing that a stay order was issued on 27th November 2023 and an enforcement notice on 25th January 2024 after the 1st Interested Party failed to comply. Since the Respondent had taken the statutory enforcement steps, there was no failure or neglect of duty to justify mandamus. Further, mandamus cannot command a duty be performed in a specific way where the statute leaves discretion as to the mode of performance.
Scope and limits of the remedy of mandamus
Mandamus is a command of extensive remedial nature directed at performance of public duties, but it must command no more than the party is legally bound to perform and cannot dictate the manner of performing a discretionary duty
Relying on the Court of Appeal's decision in Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge quoting Halsbury's Laws of England, and on Shah v Attorney-General (No 3) quoting Prem's Law of Writs, the court held that courts proceed with extreme caution in granting mandamus against executive officers and it does not lie as a matter of course.
Legal principles established
#- Mandamus will not issue against a public authority that is already discharging the statutory duty sought to be enforced, particularly where the statute imposes the duty without prescribing timelines
Court orders
#- 1.The Notice of Motion application dated 19th January, 2024 is dismissed with costs
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act, Cap 26, and Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Executive Committee Member Nakuru County, Department of Land, Physical Planning, Housing & Urban Development; Njoka & 3 others (Interested Parties); Njoka (Exparte) (Environment and Land Judicial Review Case 1 of 2024) [2024] KEELC 4423 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 19th January, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4423/eng@2024-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.