Maina

1. What is before the Court is the Amended Notice of Motion dated 16th July 2025 in which the ex parte applicant seeks an order of mandamus compelling the County Executive Committee of the Nairobi City County Government, the Governor of Nairobi City County, the County Secretary, the County Attorney, the County Executive Committee Member for Finance, and the County Executive Committee Member for Built Environment and Urban Planning to comply with the decree dated 23.3. 2000, as re-issued on 15.5.2019, 2. The mode of compliance sought is by resettling the one hundred and twenty-eight (128) Plaintiffs within ninety (90) days from the date of the consent order, in accordance with the attached list of beneficiaries and, in the alternative, that the Court do award the Applicants damages arising from the subject matter of these proceedings, together with interest thereon and that the costs of this application be borne by the Respondents. 3. The Application is premised on the ground that the County Government has failed to comply with the consent order issued by the Court on 23.3 2000. This is despite the Applicants having served the Respondent with several notices and the Respondent having undertaken to resettle them on Land Parcel No. 12979/1 (Part Ruai), even going as far as issuing them with letters of allotment. However, it is averred that the Respondent has subsequently declined to grant the Applicants the necessary clearance to take possession of the land.

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4. The Application is opposed by one Aloys Matoke, who swore a Replying Affidavit dated 15.7. 2026 on behalf of the 2nd Respondent. 5. The deponent states that he is an employee of the Nairobi City County Government, where he serves as the Deputy Director of Land Survey. 6. He deposes that he is aware of the ruling delivered on 23.3. 2000, pursuant to which the Respondents were required to settle the Applicants on L.R. No. 209/12010. 7. He further deposes that on 30.4. 2019, the Court issued a further order under which the Respondents were to relocate the Applicants to L.R. No. 209/12010. A copy of the said order is annexed and marked “AL1.” 8. The 2nd respondent further deposes that, by a letter dated 6.12.2006, it was confirmed that the land occupied by the Applicants had been earmarked for the construction of a school and the rehabilitation of poor neighborhoods within Nairobi. He also deposes that the German Government had committed a grant of Kshs. 5,000,000/- towards the project. A copy of the said letter is annexed and marked “AL-2.” 9. The 2nd respondent deposes that, following the issuance of the aforementioned orders, the Respondent was able to identify an alternative land in Ruai, being L.R. No. 12979/1, where it was proposed that the Applicants were to be resettled. Through a letter dated 16. 11. 2010, which letter was addressed to the Mathare 4A Self Help Group, the Respondent reaffirmed and confirmed its commitment to resettle the Applicants and further called upon the relevant Government

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departments to provide the necessary support required to facilitate the resettlement exercise. 10. The 2nd Respondent deposes that, on 22.12. 2020, the Respondent, through a letter under reference EOP/NMS/TC/5/1/152, notified the Mathare 4A Self Help Group that the land in Ruai, being L.R. No. 12979/1, was no longer available for residential purposes as had been requested because the National Government had designated the property as a reserve for purposes of serving the County's sewerage functions. A copy of the said letter is annexed and marked “AL-4.” 11. The 2nd Respondent deposes that the Respondent is still in the process of identifying an alternative parcel of land upon which the Applicants may be resettled. 12. The 2nd Respondent deposes that the Applicants submitted a list containing approximately 2,500 persons for purposes of resettlement. 13. It is deposed that such submission has contributed to the delay in completing the exercise of relocation. It is further deposed that negotiations between the Respondent and the Applicants are still ongoing and that the County Government is in the process of identifying and earmarking a suitable parcel of land within its jurisdiction, with a view to resettling the Applicants. 14. In response to the 2nd Respondent’s replying affidavit dated 22.7.2026, the ex parte Applicant states that the matter was conclusively determined following a consent that was negotiated,

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agreed upon and filed by the parties, which consent was subsequently adopted by the Court as an order of the Court. 15. The Applicant further states that the consent was premised on an allotment letter issued to the Applicant pursuant to a resolution passed at a duly convened meeting of the Respondent. In particular, the Applicant refers to Minute No. 29 of the said meeting, through which the Respondent resolved to duly allot the suit property to the Applicants. 16. The Applicant contends that the Respondent’s Replying Affidavit amounts to an attempt to reopen and relitigate a matter that had already been conclusively determined by the Court. 17. The Applicant further contends that the Respondent has failed to adequately respond to the issues raised in the Application. 18. The Applicant states that, the Respondent having acknowledged its commitment to resettle the Applicants on the suit property, the Respondent ought to call upon the Government to provide the necessary support and assistance to facilitate the successful implementation of the resettlement project. 19. The Applicant states that the Respondent cannot now contend that the suit property is unavailable, particularly when the matter was already conclusively settled through the consent adopted by the Court as an order of the Court. 20. A court order is not just a mere expression of the parties' intentions. Once a consent is adopted as an order of the Court, it

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acquires the full force and authority of a judicial determination and remains binding on all parties until it is lawfully set aside or varied. It should be noted that a consent judgment has contractual effect. 21. In Flora N. Wasike v Destimo Wamboko [1985] KECA 149 (KLR), the Court of Appeal held that a consent judgment or order can only be set aside on grounds which would justify setting aside a contract, such as fraud, mistake or misrepresentation. This principle has subsequently been affirmed by the Court of Appeal in National Bank of Kenya Limited v Otieno Ragot & Company Advocates [2020] KECA 828 (KLR), where the Court reiterated that a consent order is binding and cannot ordinarily be varied or discharged except upon grounds that would justify setting aside an agreement. 22. In the present case, there is no evidence tendered before this Court that the Respondents have applied to set aside or vary the consent order or that either has been done. There is no demonstration of fraud, collusion, mistake, misrepresentation or any other ground for setting aside the consent order. All the respondent has done is to explain why they have been unable to implement the consent order. Mere explanation does not exclude a party from being bound by the consent order which was adopted as an order of the court. 23. The 1st and 2nd Respondents are public authorities, established under the Constitution of Kenya under Article 179 and the County Government Act,2012.

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24. The 3rd respondent is established under Section44(1) of the County Government Act, 2012; the 4th respondent is established under Section 4(1) of the National Office of the County Attorney Act. 25. The 5th respondent is established under Article 179 of the Constitution of Kenya and dual-operationalized through Section 35 of the County Governments Act, 2012, and Section 103 of the Public Finance Management (PFM) Act, 2012, and the 6th respondent is established under Article 179 of the Constitution of Kenya, working in tandem with Section 35 of the County Governments Act, 2012, and the Physical and Land Use Planning Act (PLUPA), 2019 26. All the respondents are collectively mandated to exercise their functions in accordance with the provisions of the Constitution and applicable land, planning and public administration laws. 27. The Respondents' main defence is that L.R. No. 12979/1 is no longer available for residential settlement as it has allegedly been reserved for sewerage purposes. 28. The respondents acknowledge that they had initially identified L.R. No. 12979/1 for purposes of resettling the Applicants and had undertaken steps towards implementation of the consent order. 29. Their current position, however, is that the Applicants must await identification of an alternative parcel of land. This is an admission that the resettlement obligation remains outstanding. 30. In Republic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another [2018]

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eKLR, Hon. Mativo, J. (as he then was) held: “Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty, and it is a remedy that controls procedural delays. 31. The test for mandamus is set out in Apotex Inc. vs. Canada(Attorney General), and was also discussed in Dragan vs. Canada(Minister of Citizenship and Immigration). The eight factors that must be present for the writ to issue are: i. There must be a public legal duty to act; ii. The duty must be owed to the Applicants; iii. There must be a clear right to the performance of that duty. 32. The Applicants have to satisfy all conditions precedent; and b. There must have been: i. A prior demand for performance; ii. A reasonable time to comply with the demand, unless there was outright refusal; and iii. An express refusal, or an implied refusal through unreasonable delay; iv. No other adequate remedy is available to the Applicants; v. The Order sought must be of some practical value or effect; vi. There is no equitable bar to the relief sought; vii. On a balance of convenience, mandamus should lie.’ 33. In Republic v Kenya National Examinations Council ex parte Gathengi & 8 Others, Civil Appeal No 234 of 1996, the Court of Appeal cited, with approval, Halsbury’s Law of England, 4th Edn. Vol. 7 p. 111 para 89 thus: “The order of mandamus is of 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

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specified which appertains to his or their office and is like 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 right and no 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 effectual." 34. The nature and scope of mandamus was explained by the Court of Appeal in Republic v Kenya National Examinations Council ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] KECA 58 (KLR) 35. Mandamus is a legal court order that forces a public official or a public/government entity to carry out a mandatory task required by law when they have failed, refused, and/or neglected to do so, provided that a party requesting to be granted the order has the legal right to demand its completion. 36. The Court of Appeal clarified that mandamus cannot dictate how a public body should exercise its discretionary powers. If the law gives a public entity the choice of how to act, the court cannot force it to choose a specific outcome, as held in Geoffrey Sheridan Ouma vs Public Service Commission of Kenya (2019) KECA 861 (KLR) 37. In this case, the Applicant is not simply asking the Court to compel the Respondents to exercise a general statutory power concerning land settlement. There already exist and subsisting consent

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decree imposing an obligation upon the Respondents concerning the resettlement of the Applicants. The question that must, however, be answered is whether in law the Respondents owe a duty of land resettlement to the ex parte applicant. The answer lies with the law on resettlement in Kenya. 38. Other than the court decree, the ex parte applicants have not demonstrated non- compliance with that obligation by the relevant agencies has been due to the complicity of the respondents. The presence of an active court order or decree per se does not establish that the Respondents have a sole mandatory public duty to fulfill that statutory obligation. 39. Under Section 11(1)(f) of the Fair Administrative Action Act, a court handling judicial review proceedings has explicit statutory authority to issue an order compelling a public body and/or government entity to fulfill a legal public duty provided that the applicant has locus to demand that performance. That section cannot be read in isolation from constitutional and statutory obligations relating to land resettlement of squatters. 40. Section 7(2)(j) of the same Act establishes that unreasonable delay to act or complete failure to execute a duty required by written law constitutes valid legal grounds to seek a judicial review, as was established in Standard Chartered Bank Ltd vs National Land Commission (Judicial Review Originating Motion Application

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E249 of 2025) [2025] KEHC 16252 (KLR) (Judicial Review) (10 November 2025) (Judgment) 41. Article 47 of the Constitution similarly guarantees every person administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 42. The Respondents' claim that they are still trying to identify land, many years after the consent order, cannot be accepted as a satisfactory or legally compliant execution of the decree. 43. Whereas the Court recognizes the well-documented fact that these legal proceedings began many years ago and that the applicants cannot be forced to wait indefinitely in a state of limbo while the respondents continue their prolonged negotiations and alternative land search, it has n ot been proved by the ex parte applicant that there already exists an alternative land for resettlement. 44. Section 134 of the Land Act establishes the legal framework for settlement programs, which are specifically designed to guarantee access to land for housing and economic survival. 45. The statute explicitly mandates these programs to accommodate squatters, individuals uprooted by public development initiatives, and persons displaced by any other disruptive events as was found by the court in Joseph Langat & 2 others (Suing as the officials of 343 members of Koita Welfare Self-Help Group) v Kericho County Goverment & 4 others; (Interested Party) Koita Community (Environment and Land Welfare Group Constitutional

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Petition 1 of 2017) [2022] KEELC 14459 (KLR) (27 October 2022) (Judgment). 46. The statutory framework explicitly acknowledges that the designated public authorities bear the legal responsibility to execute and implement lawful land settlement programs. 47. In Republic & another v Land Control Board Mukaa Subcounty & another; Deputy County Commissioner Mukaa Subcounty (Interested Party) (Environment and Land Case Judicial Review Application E003 of 2024) [2025] KEELC 4999 (KLR) (3 July 2025) (Judgment), the court declined to issue a mandamus order to compel the allocation of a specific public land parcel if such an action amounted to violating existing laws or interfered with lawful public purposes. This principle ensures that judicial orders adhere to statutory regulations and protect public interest over individual claims. 48. In this case, if the evidence demonstrates by the respondents that L.R. No. 12979/1 is truly and legally unavailable for housing purposes, the Court lacks the authority to order the respondents to distribute that specific parcel in a manner that contradicts its lawful zoning or designation. That conclusion, however, does not release the respondents from their legal obligation to execute and fulfill the court decree. 49. Section 11 of the Fair Administrative Action Act grants the Court the power to award fair and balanced remedies, which can include

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financial compensation in suitable cases. However, the Applicant has not placed sufficient evidence before the Court upon which damages can properly be assessed and quantified. 50. Further, the primary complaint before the Court concerns failure to implement an existing decree. In the circumstances, the more appropriate remedy is a direct the respondent alongside other state agencies to within 6 months from the date hereof to comply with the decree and to file a report before this court on the progress on resettlement of the decree holders. 51. The prayer for damages is therefore declined. 52. Orders accordingly. 53. Mention on 30th March 2027. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER, 2026 ………………………… HON. JUSTICE C.K NZILI JUDGE In the presence of: Achora for the respondent Applicant present Court Assistant: Julius

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