Mutisya v Chairman, National Land Commission & 2 others (Environment and Land Judicial Review Case E003 of 2024) [2025] KEELC 7949 (KLR)

Secretary, National Land Commission (2nd Respondent) and National Land Commission (3rd Respondent) – be ordered, via an order of mandamus, to satisfy the certificate of order issued in Kitui ELC Appeal No. E004 of 2021 together with interests thereof at the rate of 14% from 4th March, 2021 until payment in full. He also wants to be awarded costs of this application. 2. The motion is expressed to be brought under Sections 8 and 9 of the Law Reform Act (Cap 26), Order 53 Rule 1 (1), (2), (3) and (4) of the Civil Procedure Rules, Section 3A of the Civil Procedure Act (Cap 21) and all other enabling provisions of law. The foundational aspects of the matter are to be found on the grounds spelt out on the face of the motion. 3. It is posited that the applicant bought land parcel No. Kisasi/Nguuni/1462 sometime in the year 2008 from one Kambua Mang’uye. The land happened to be near a major road – Kibwezi, Mutomo, Kabati, Migwani Road, (A9/B64) – that was then proposed to be constructed. On the applicant’s land was a building under construction. The applicant’s land happened to be one of several other parcels of land that would be compulsorily acquired to pave way for the road construction. Sometimes in 2019, the applicant found his building demolished with some excavation also having taken place. He tried to find out if his parcel of land was one of those compulsorily acquired. He found that his parcel of land was missing from the list of the parcels of land earmarked for compulsory acquisition. He came to court here in Kitui vide Kitui ELC Appeal No. E004 of 2021. The appeal was heard and via a judgement delivered on 8/3/2022, the court ordered inter alia, that he be paid Kshs. 2,097,983.95. The payment had to come with interests calculated at the then applicable base lending rate set by Central Bank of Kenya and prevailing from 4/3/2021. Costs of the appeal were also awarded to the applicant. 4. From the judgement was raised a decree accompanied by a certificate of order requiring payment by the respondents of the decretal sum amounting to Kshs. 2,097,983.75, costs certified at Kshs. 72,010.00 and court fees in the sum of Kshs. 71,000.00. 5. To-date, the applicant has not been paid and this is what impelled him to come to court for an order of mandamus to compel payment. 6. It appears reasonably clear that the respondents are served. In the court file, there are two afidavits of service – one dated 13/9/2024 and another dated 9/1/2025 – showing service efiected on the respondents. Despite service however, the respondents did not make any appearance in court or file a response. Essentially therefore, this is an undefended matter. 7. The matter was canvassed through written submissions. The applicant submitted that the respondent has refused to pay and it is therefore necessary to grant the order sought so that payment can be made. It was pointed out that the respondents have denied the applicant the right to enjoy the fruits of his judgement and this has gone on for more than three (3) years. 8. The applicant profiered the case of Republic v The County Secretary, Narok County Government & Another, Ex parte SEC & M. Company Limited: J.R. No. E045 of 2021 [2022] eKLR for support of his case. The case is relevant to the one at hand. It involved an Ex parte Applicant to whom a decretal sum was owed by the respondent. The respondent had failed to pay for a long time. The Ex parte applicant went to court and applied for an order of mandamus to compel payment. The court granted the order. 9. I have considered the application before me and the submissions filed. The issue is whether the application has merits. What is sought is the prerogative order of mandamus. Usually, to get an order of mandamus, a party is required to show, inter alia, that he has a clear legal right accruing to him; that the legal right has been violated or breached; that there is a correlative duty incumbent upon the violating party to take action in order to comply with the law; that the violating party has neglected or https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7949/eng@2025-10-16 2

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refused to perform the action; that the duty to perform the action is not optional or discretionary but mandatory, ministerial, and/or administrative; and finally, that the party seeking the remedy in court has no other plain, speedy or adequate remedy readily available to him in the ordinary course of law. 10. Further, the scope of an order of mandamus is captured well in Hasbury’s Laws of England, 4th Edition, Volume 1 at Page III (starting from paragraph 89 onwards) as follows: “ The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their ofice and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and efiectual.” 11. In addition to the case made available by the Ex parte Applicant herein to support his case, there is also the case of Republic v City Council of Nairobi, Exparte David Peter Ndambuki: Judicial Review 398 of 2012 [2013] KEHC 4231 (KLR) where G. V. Odunga, J. (as he then was) found for the Ex parte applicant in circumstances where the facts of the case before him were broadly similar to the facts in the case now under consideration here. 12. The respondents in this case are a Government body and some Government functionaries vested with both constitutional and statutory mandates to perform and render, amongst others, the kind of duty that the ex parte applicant is complaining that they failed or refused to render him. When it comes to the obligation to compensate where somebody’s land or property is compulsorily acquired, the respondents have no luxury of deciding whether or not to pay. They must compensate as a matter of constitutional and legal duty. Such compensation must be prompt, just, and/or adequate. 13. Being Government functionaries and/or body, the respondents are shielded or protected from execution by way of attachment. Such protection is to be found in Section 21 of the Government Proceedings Act, which specifically at Sub-section 4, provides as follows: “ (4) Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no persons shall be individually liable under any order for the payment by the Government, or any Government department, or any oficer of the Government as such of any money or costs.” 14. It stands to reason and common sense therefore that with the Ex parte Applicant herein rendered bereft of any other means of realising payment he had to come to court to in order to get the fruits of his judgement. He had to approach the seat of justice in the manner that he has. From the facts laid before court, the Ex parte Applicant has waited for a long time to be paid. The respondents have all along failed, neglected, or refused to act on his matter. In the court’s considered view, the merits of the applicant’s application have been suficiently demonstrated. 15. The end-result is that the Ex parte Applicant’s application is allowed in terms of prayers (2). The Ex parte Applicant is also awarded costs of this matter. JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT KITUI THIS 16TH DAY OF OCTOBER, 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7949/eng@2025-10-16 3

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A. KANIARU JUDGE - ENVIRONMENT & LAND COURT, KITUI In the presence of, Court Assistant – Musyoki Momanyi Magare for Ex parte Applicant Applicant – absent Respondent - absent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7949/eng@2025-10-16 4

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