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ELCPartially AllowedJudicial Review Miscellaneous Application (Notice of Motion dated 6/10/2023)

Twilight Investments Limited v Machakos Investment Promotion Board & 2 others (Environment and Land Judicial Review Case E005 of 2023) [2025] KEELC 782 (KLR)

Environment and Land Court
25 February 2025
2,288 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Machakos County entities must pay a landlord KShs 2 million plus interest and costs within 90 days after a court order compelled them to settle an unpaid rent judgment.

What this practically means

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Executive summary

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The applicant, proprietor of L.R. No. 337/631 Athi River, obtained judgment in Machakos CMCC No. 547 of 2018 against county government entities for rent arrears of Kshs. 1,815,000/- plus costs. A decree (amended 25/09/2019), a certificate of costs and a certificate of order against the government were issued on 2/06/2023 and served on the CEC member of finance on 12/06/2023, but the respondents did not settle. With leave granted on 15/11/2023, the applicant moved the court by notice of motion dated 6/10/2023 under Order 53 Rule 3(1) seeking mandamus compelling the county secretary, the CEC finance member and the accounting officer to pay the decretal sum, interest and costs within 21 days, failing which contempt proceedings would issue. The motion was unopposed. The court framed one issue: whether mandamus was merited, and a preliminary issue on the contempt relief, which it declined as premature, to be pursued under Section 5 of the Judicature Act and Part 81 of the England and Wales CPR after any non-compliance. Relying on NARC Kenya v IEBC, the Kaggwa decision and Jaribu Credit Traders, the court held its jurisdiction flowed from Article 23(3)(f), Section 8(1) of the Law Reform Act and Section 13(5)(b) of the ELC Act; that the applicant complied with Section 21 GPA preconditions; and that the quantum was proven. Mandamus issued but modified: payment within 90 days rather than 21, directed at the Board, the Chief Officer-Finance/County Treasurer and/or the County Government, covering the decretal sum with interest and Ksh. 230,775/- in costs, with costs of the suit to the applicant. Judgment delivered 25/02/2025 by A. Y. Koross, J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the relief of mandamus is merited
  2. 2.Whether the relief of contempt of court sought alongside mandamus is available at this stage

Key legal issues

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01

Jurisdiction to grant mandamus

Holding

The court has jurisdiction to issue mandamus under Article 23(3)(f) of the Constitution, Section 8(1) of the Law Reform Act and Section 13(5)(b) of the Environment and Land Court Act

Reasoning

The court traced its judicial review jurisdiction to Article 23(3)(f) of the Constitution, Section 8(1) of the Law Reform Act and Section 13(5)(b) of the Environment and Land Court Act, the latter empowering the court to grant any relief it deems fit and just, including prerogative orders. This established the foundation for entertaining the motion for mandamus against county government entities.

p. 3
02

Compliance with Section 21 of the Government Proceedings Act as a precondition to mandamus

Holding

The applicant complied with all legal prerequisites: it obtained a certificate of costs and certificate of order against the government, and served them on the responsible CEC member of finance on 12/6/2023

Reasoning

Section 21(1) and (2) of the GPA require the decree-holder to be armed with a certificate of costs and a certificate of order against the government issued after expiry of 21 days from judgment, and to serve these on the responsible government body. The applicant did so, the respondents were unresponsive, and the applicant then moved the court four months later.

p. 4
03

Proof of quantum due

Holding

The applicant proved the amounts due were known and ascertainable, satisfying the requirement in Jaribu Credit Traders Ltd v Nairobi County Government

Reasoning

Citing Jaribu Credit Traders Limited v Nairobi County Government, the court held the applicant had to prove the sum claimed was actually due and the quantum ascertainable. The decree, certificate of order and certificate of costs established the decretal sum and costs, so the hurdle was met, entitling the successful litigant to enjoy the fruits of the judgment under Article 48.

p. 4
04

Personal liability of government officers

Holding

No officer is personally liable under Section 21(4) GPA; mandamus lies against the entities, and joining the 1st and 3rd respondents lets them identify the responsible officers

Reasoning

Section 21(3) of the GPA designates the accounting officer as the liable officer, but Section 21(4) shields officers from personal liability. The court therefore tailored the mandamus against the Board, the Chief Officer-Finance/County Treasurer and/or the County Government, noting the joined respondents could identify the responsible officers.

p. 5
05

Contempt relief sought alongside mandamus

Holding

Declined as premature; contempt must follow the judgment and any non-compliance, guided by Section 5 of the Judicature Act and Part 81 of the England and Wales CPR

Reasoning

The court found the contempt relief premature since non-compliance could only arise after judgment. It directed that any future contempt proceedings be anchored on Section 5 of the Judicature Act and Part 81 of the England and Wales Civil Procedure Rules.

p. 3

Legal principles established

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  • Mandamus compels a public entity to perform a public duty it has failed to perform to the detriment of a party with a legal right to expect performance
  • To enforce a decree against government, the decree-holder must obtain a certificate of order against the government after expiry of 21 days, serve it on the responsible government body, and prove the sum is due and the quantum ascertainable

Court orders

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  1. 1.An order of mandamus compelling the Machakos Investment Promotion Board and/or Chief Officer-Finance/County Treasurer, Machakos County and/or Machakos County Government to pay the applicant within 90 days Kshs. 1,815,000/- with interest at 12% per annum from 30/08/2018 to 28/02/2019 (Kshs. 181,500/-) and interest at 6% per annum on Kshs. 1,996,500/- from 24/01/2019 to 31/05/2023 (Kshs. 519,000/-) until payment in full in terms of the certificate of order against government issued on 2/06/2023
  2. 2.An order of mandamus compelling the same entities to pay the applicant Ksh. 230,775/- in terms of the certificate of order for costs against the government issued on 2/06/2023
  3. 3.Costs of the suit awarded to the applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 23(3)(f) of the Constitution, Section 8(1) of the Law Reform Act and Section 13(5)(b) of the Environment and Land Court Act; leave granted 15/11/2023 under Order 53 Rule 3(1) Civil Procedure Rules

Relief refused

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Notice to show cause / contempt proceedings against the responsible officers

Premature - contempt can only be sought after a positive outcome of the mandamus judgment and any consequential non-compliance

p. 3

Costs

Costs of the motion/suit awarded to the applicant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An order of mandamus would compel the performance of a public duty which was imposed on a person or body of persons by a statute and where that person or body of persons had failed to perform to the detriment of a party who had a legal right to expect the duty to be performed.
p. 3Essence of mandamus
The purpose of mandamus is to compel the performance of a public duty or an act contrary to, or evasive of, the law; as I said above, it does not lie against a public oficer as a matter of course
p. 3Bars and limitations on mandamus
In my humble view, this relief is premature as it has to be sought after a positive outcome of this judgment and the consequential non-compliance (if any).
p. 3Contempt relief premature
An order of mandamus be and is hereby issued compelling the Machakos Investment Promotion Board and/or Chief Oficer-Finance/County Treasurer, Machakos County and/ or Machakos County Government to pay the applicant within 90 days hereof the sum of ksh. 1,815,000/-
p. 5Final orders - mandamus for decretal sum
An order of Mandamus be and is hereby issued compelling the Machakos Investment Promotion Board and/or Chief Oficer-Finance/County Treasurer, Machakos County and/ or Machakos County Government to pay to the applicant the sum of Ksh. 230,775/- in terms of the certificate of order for costs against the government issued on 2/06/2023.
p. 5Final orders - mandamus for costs
Costs of this suit are awarded to the applicant.
p. 5Final orders - costs

Issues in the judgment

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minor

Certificate of order for costs issued 2/06/2023 but the motion is dated 6/10/2023 while the pleading narrative says the applicant's advocates received the certificate on 12/06/2023 and demanded settlement within 21 days from a letter of the same date; the motion date and the 'unresponsive' letter of 12/06/2023 precede the pleaded service date, a minor internal chronology inconsistency

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, "Twilight Investments Limited v Machakos Investment Promotion Board & 2 others (Environment and Land Judicial Review Case E005 of 2023) [2025] KEELC 782 (KLR)", Case Analysis (2025). Judicial Review Miscellaneous Application (Notice of Motion dated 6/10/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/782/eng@2025-02-25

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