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ELCStruck OutJudicial Review Motion dated 12/6/2023 (Thika High Court Judicial Review)· [2024] KEELC 5410 (KLR)

Republic v District Land Registrar - Thika & 3 others; Viewland Investments Company Limited (Exparte Applicant) (Judicial Review Application E004 of 2023) [2024] KEELC 5410 (KLR)

High Court of Kenya
9 July 2024
BEB M Eboso
2,027 words in judgment
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The bottom line

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Kenya's High Court struck out a mandamus application to enforce a judgment against Government because the applicant skipped mandatory steps under the Government Proceedings Act.

What this practically means

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Executive summary

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The ex-parte applicant moved the court by a judicial review motion dated 12/6/2023 seeking an order of mandamus compelling four respondents to satisfy a decree issued by Gacheru J on 8/11/2019 in Thika Environment and Land Court Case No 90 of 2018, together with taxed costs of Kshs 440,429/= per a Certificate of Taxation dated 5/8/2022. The respondents opposed through grounds of opposition and submissions filed by Principal State Counsel J. Motari Matunda, arguing the application was frivolous, that mandamus cannot issue against persons who are not accounting officers, and that no certificate of order under Section 21 of the Government Proceedings Act had been obtained and served; they also noted budgetary constraints. The court (B M Eboso J) identified a single issue: whether the applicant met the criteria for mandamus. Adopting the Apotex test and the Kenya Joinery and Egunza authorities, the court held that the applicant failed to exhibit the judgment and decree underlying the mandamus plea, and further failed to prove service of the statutory certificate of order on the Attorney General, a mandatory condition precedent under Section 21 of the Government Proceedings Act. The application was therefore premature and was struck out. On costs, the court denied the Government Department costs for disregarding the judgment and, the other respondents being public officers funded by the public coffers, made no award of costs.

Key legal issues

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Whether the applicant satisfied the criteria for mandamus

Holding

The application failed: neither the judgment nor the decree was exhibited, and there was no evidence of service of the certificate of order under Section 21 of the Government Proceedings Act; the motion was premature and was struck out

Reasoning

Mandamus compels performance of a public legal duty and requires, among other elements, satisfaction of conditions precedent and a prior demand with refusal or unreasonable delay. Section 21 of the Government Proceedings Act mandates extraction and service of a certificate of order on the Attorney General as a formal demand on the accounting officer. The applicant proved only the certificate of taxation and did not demonstrate service of the certificate of order, so the statutory condition precedent was unmet and the application was premature.

p. 4

Legal principles established

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  • Before mandamus can issue to compel payment of a decree against Government, the decree-holder must obtain and serve on the Attorney General a certificate of order under Section 21 of the Government Proceedings Act; failure renders the application premature
  • In the absence of the judgment and decree underlying a mandamus application, the court has no basis to issue the order

Court orders

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  1. 1.The judicial review motion dated 12/6/2023 is struck out for having been brought prematurely
  2. 2.No award of costs - each party to bear their own costs

Authorities

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Legislation

  • Government Proceedings ActSection 21(1), (2), (3), (4), (5)

Cases cited (4)

  • Apotex Inc. v Canada (Attorney General)
  • Dragan v Canada (Minister of Citizenship and Immigration)
  • Republic v Attorney General; Kenya Joinery Limited (Exparte)
    [2023] eKLR
  • Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza
    [2012] eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court (motion for order of mandamus)

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 District Land Registrar - Thika & 3 others; Viewland Investments Company Limited (Exparte Applicant) (Judicial Review Application E004 of 2023) [2024] KEELC 5410 (KLR)", Case Analysis (2024). Judicial Review Motion dated 12/6/2023 (Thika High Court Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5410/eng@2024-07-09

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