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ELCAllowedThika ELC No. 90 of 2017 (Judicial Review Motion pursuant to leave granted 28/10/2021)· [2025] KEELC 8395 (KLR)

Butali & 36 others v District Land Registrar, Thika District & 4 others (Judicial Review Application 4 of 2020) [2025] KEELC 8395 (KLR)

Environment and Land Court of Kenya
2 December 2025
3,237 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Applicants, 37 petitioners, had earlier succeeded in a constitutional petition (originally Nairobi Constitutional Petition No. 20 of 2010, transferred to Thika ELC No. 90 of 2017) in which judgment delivered on 8/11/2019 awarded each of them Kesh 100,000 as general damages for trespass, totalling Kesh 3,700,000. Despite demand letters, the 2nd Respondent failed to pay. The Applicants moved the court by Notice of Motion under Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, seeking an order of mandamus compelling the Respondents to satisfy the decree. The application was unopposed but contested by way of submissions: the 1st to 4th Respondents argued the decree contained an error (34, not 37, petitioners, hence Kesh 3,400,000), that mandamus must be specific, that the application was misdirected to the wrong officers, and that payment must await budgetary provision. Framing a single issue on entitlement to mandamus under Section 21 of the Government Proceedings Act, Mogeni J applied Kisya Investments, Wachira Nderitu Ngugi, Nassir Mwandihi and related authorities, holding that execution against the Government is barred and mandamus against the accounting officer is the sole remedy. Finding the Applicants had fully complied with the Section 21 procedure, that no appeal, stay or review existed, and that six budget cycles had passed since judgment, the court dismissed the budget objection as an attempt to defeat the judgment and held the decree error could not shield non-compliance. The Notice of Motion was allowed: mandamus issued compelling payment of Kesh 3,700,000, with costs to the Applicants payable by the 2nd Respondent.

Key legal issues

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01

Entitlement to mandamus to enforce a decree against the Government under Section 21 of the Government Proceedings Act

Holding

The Applicants fully complied with the Section 21 procedure (decree, certificate of order against the Government, demand and service), no appeal, stay or review exists, and six budget cycles have passed since the judgment; mandamus therefore issues.

Reasoning

Section 25 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules bar execution against Government property, leaving mandamus as the sole remedy. The court found the Applicants had secured a valid Decree, obtained a Certificate of Order against the Government and served it on the Respondents. The Respondents raised only budgetary constraints and an alleged error in the number of Petitioners (34 not 37), neither of which excuses payment. The budget argument was rejected as an attempt to defeat the judgment, and the error argument was held improper via submissions and incapable of shielding non-compliance with a lawful decree.

p. 7
02

Whether the Respondents' budgetary argument and the alleged decree error defeat the application

Holding

Neither argument avails. Payment under Section 21(3) is not conditioned on budgetary allocation, and the error in the decree cannot be used as a shield to avoid compliance with a lawful decree.

Reasoning

The court adopted the reasoning in Nassir Mwandihi and the Provincial Administration case that the Section 21 procedure is meant to give the Government notice, not to relieve it of its statutory obligation. Six budget cycles had elapsed since the judgment of 8/11/2019 without payment, showing the accounting officer's awareness. As to the alleged error (34 vs 37 petitioners), the court noted the Respondents should simply pay the figure they contend is correct rather than obstruct; in any event the mandamus issued for the full decreed sum of Kesh 3,700,000.

Legal principles established

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  • No execution or attachment may issue against the Government; the sole recourse of a decree holder against the Government is an order of mandamus against the accounting officer.
  • Where a judgment creditor has complied with Section 21 of the Government Proceedings Act and the Government fails to pay, mandamus lies to compel performance of the statutory duty.
  • A decree against the Government cannot be conditioned on budgetary allocation; Section 21(3) imposes a statutory duty on the accounting officer to pay once the certificate of order against the Government is served.
  • An alleged error in a decree cannot be raised through submissions to defeat compliance; it must be raised by formal application.

Court orders

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  1. 1.An order of Mandamus to compel the Respondents to pay the Applicants Kenya Shillings Three Million Seven Hundred Thousand (Kesh 3,700,000) as awarded in Thika ELC No. 90 of 2018 as contained in the Decree dated 1st December, 2019
  2. 2.Costs of the application awarded to the Petitioners/Applicants to be paid by the 2nd Respondent
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act, Cap 26 and Order 53 Rules 1, 3 and 4 of the Civil Procedure Rules, 2010, pursuant to leave granted on 28th October, 2021

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, "Butali & 36 others v District Land Registrar, Thika District & 4 others (Judicial Review Application 4 of 2020) [2025] KEELC 8395 (KLR)", Case Analysis (2025). Thika ELC No. 90 of 2017 (Judicial Review Motion pursuant to leave granted 28/10/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8395/eng@2025-12-02

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