Republic v County Government of Garissa & another; Omar & another (Exparte Applicants) (Judicial Review Miscellaneous Application E001 of 2023) [2024] KEELC 5566 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered Garissa County to obey a 2017 court decree, confirming counties can be compelled through mandamus like any other public body.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondents are under a public duty to comply with the decree issued in Garissa CMCC No. 34 of 2011
Yes. The County Government of Garissa and the CECM for Lands, Housing and Physical Planning are under a public legal duty to satisfy the decree, the 2nd Respondent being the officer responsible for compliance with the Lower Court's order.
Mandamus compels performance of a public duty imposed by law where, despite demand, the duty has not been performed. The Applicants obtained a permanent injunction and decree from the Chief Magistrate's Court against the defunct County Council of Garissa and its successor county government. Execution against government is restricted to the Accounting Officer under the Government Proceedings Act, which applies to counties via the Sixth Schedule and Article 189(1)(a). The 2nd Respondent, as officer in charge of the lands ministry, bears responsibility for compliance.
Whether the ex parte Applicants are entitled to the relief sought
Yes. The Notice of Motion dated 16th October 2023 was merited and judgment was entered for the Applicants with mandamus and unconditional compliance orders.
The Applicants had a decree from a competent court but were barred from executing against the Government, leaving mandamus as the only remedy. Relying on the Koroso decision and Article 48 on access to justice, the court found that decreed persons must enjoy the fruits of their judgment and that the Applicants should not be left 'baby-sitting' a barren decree due to inaction of public officers.
Legal principles established
#- Execution proceedings against a Government or Public Authority under the Government Proceedings Act can only lie against the Accounting Officer or Chief Officer, who is under a statutory duty to satisfy judgments against that body, and mandamus may issue to compel compliance.
- The Government Proceedings Act applies to County Governments by virtue of section 7 of the Sixth Schedule to the Constitution and Article 189(1)(a), requiring equal treatment of the two levels of government including in execution proceedings.
Court orders
#- 1.An order of mandamus directed to the 1st and 2nd Respondents compelling them to comply with the decree issued in Garissa CM's Court Civil Case No. 34 of 2011 issued on 14th September 2017, including the permanent injunction restraining the Defendants, their agents and/or agents from selling, transferring Plot No. Garissa/1628 to a third party or interfering with the Plaintiffs' quiet enjoyment and/or use of the plot, and the release of the Plaintiffs' fencing posts pulled down and taken to the Defendant's yard
- 2.The County Government of Garissa and the County Executive Committee Member in charge of Lands Housing and Physical Planning to comply with the decree of the Court issued on 14th September 2017 unconditionally
- 3.The Respondents are ordered to pay the Applicants the costs of the application
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court/ELC; enforcement of decree against a county government under the Government Proceedings Act as applied to County Governments via section 7 of the Sixth Schedule to the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Government of Garissa & another; Omar & another (Exparte Applicants) (Judicial Review Miscellaneous Application E001 of 2023) [2024] KEELC 5566 (KLR)", Case Analysis (2024). Judicial Review Proceedings, Notice of Motion dated 16th October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5566/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.