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ELCDismissedNot stated in judgment· [2024] KEELC 6994 (KLR)

Ex Parte Khodiyar Limited v National Land Commission & another (Environment and Land Judicial Review Case E009 of 2023) [2024] KEELC 6994 (KLR)

Environment and Land Court
17 October 2024
LMLucy N. Mbugua
1,138 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Nairobi (Lucy N. Mbugua, J) determines a Notice of Preliminary Objection dated 16th February 2024 raised by the 2nd respondent, contending that the court lacked jurisdiction over the dispute because Sections 112 and 133C of the Land Act require matters relating to compulsory acquisition to be heard in the first instance by the Land Acquisition Tribunal, with recourse to the High Court only on appeal. The exparte applicant, the registered owner of parcel L.R. 20281, sought enforcement of compensation awards (Kshs 39,000,000; Kshs 38,500,000; and Kshs 1,564,000) made following gazetted acquisitions of portions of its land for the standard gauge railway, which remained unpaid, invoking Articles 23 and 40 of the Constitution. The court accepted the doctrine of exhaustion of remedies and the Tribunal's statutory mandate, but posed the question of what dispute existed capable of referral to the Tribunal. Finding none - the respondents did not dispute the awards and the applicant did not challenge them - the court held the matter fell within the enforcement arena, for which judicial review by way of mandamus is the recognised route against government bodies, given the immunity from execution under Section 21(4) of the Government Proceedings Act. The preliminary objection was accordingly dismissed with costs to the exparte applicant.

Key legal issues

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01

Jurisdiction of the Environment and Land Court vis-à-vis the Land Acquisition Tribunal

Holding

The preliminary objection fails because there is no dispute for the Tribunal to resolve; the applicant seeks enforcement of an undisputed award, a function for the court

Reasoning

The court accepted the doctrine of exhaustion of remedies and the Tribunal's first-instance mandate under Section 133C of the Land Act. However, it found that neither the respondents disputed the award nor did the applicant challenge it. With no dispute to refer, the matter lay in enforcement of the award, engaging Articles 23 and 40 of the Constitution and the court's jurisdiction under Article 162 and Section 13 of the Environment and Land Court Act.

p. 2
02

Mode of enforcing monetary awards against government bodies

Holding

Such awards are enforced through judicial review by way of an order of mandamus against the accounting officer, as government enjoys immunity from execution under Section 21(4) of the Government Proceedings Act

Reasoning

Relying on Republic v Permanent Secretary Ministry of State for Provincial Administration and Internal Security, the court held that monetary decrees against government are enforced by mandamus compelling the accounting officer to pay, since government property is immune from attachment. On that basis the judicial review proceedings were in the correct forum.

p. 3

Legal principles established

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  • Where a compulsory acquisition award is undisputed, the dispute is not one for the Land Acquisition Tribunal in the first instance but falls in the enforcement arena, which is for the court
  • Monetary decrees against government can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay

Court orders

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  1. 1.The Notice of Preliminary Objection dated 16th February 2024 is dismissed
  2. 2.Costs of the preliminary objection awarded to the exparte applicant

Authorities

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Legislation

  • Land ActSections 112, 133, 133A, 133C (Sub Sections 6-8), 127, 128, 148(5)
  • Constitution of Kenya, 2010Articles 23, 40, 47(3), 162
  • Environment and Land Court ActSection 13
  • Fair Administrative Action ActNot specified
  • Government Proceedings ActSection 21(4)

Cases cited (9)

  • Royal Reserve Management Company Limited v Kenya Power and Lighting Company Limited
    [2017] eKLR
  • Kibos Distillers Limited and Four Others v Benson Ambuti Adega and Three Others
    [2020] eKLR
  • Samuel Kamau Macharia and Another v Kenya Commercial Bank Limited and Two Others
    [2012] eKLR
  • Ken Kasinga v Daniel Kiplagat Kirui and Five Others
    [2015] eKLR
  • West Kenya Sugar Company Limited v Busia Sugar Industries Limited and Two Others
    [2017] eKLR
  • Abidha Nicholus v the Attorney General and Seven Others and the National Environmental Complaints Committee and Five Others Interested Parties
    SCOK Petition E 007 of 2023
  • Republic v Chairman, National Land Commission & 2 Others Ex-parte Peter Njore Wakaba & Macharia Kinyanhui
    [2016] eKLR
  • Republic v National Land Commission Ex-parte Krystalline Salt Limited
    [2015] eKLR
  • Republic v Permanent Secretary Ministry of State for Provincial Administration and Internal Security
    (2012) eKLR
Jurisdiction invoked
Article 162 of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ex Parte Khodiyar Limited v National Land Commission & another (Environment and Land Judicial Review Case E009 of 2023) [2024] KEELC 6994 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6994/eng@2024-10-17

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