Caselaw

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELC MISC. CASE NO. 191 OF 2017 SHIMONI RESORTS LIMITED …………......................... APPLICANT VERSUS THE PRINCIPAL SECRETARY OF THE MINISTRY OF LANDS & PHYSICAL PLANNING .... 1ST RESPONDENT THE ATTORNEY GENERAL ………...…...…….………. 2ND RESPONDENT RULING I have considered the chamber summons application dated 12/10/2017 through which the ex parte applicant seeks leave of this court to commence proceedings for an order of mandamus directed at the 1 st respondent commanding him to pay the ex parte applicant the decretal sum and costs awarded in ELC 961/2012. I have examined the annextures to the verifying affidavit. Grant or refusal of leave is an exercise of judicial discretion. The test to be applied is whether the ex parte applicant has made out an arguable case [see: UWE MEIXNER & ANOR V ATTORNEY GENERAL, (2005) eKLR]. Secondly, the purpose of the application for leave is to eliminate applications which are frivolous, vexatious or hopeless and to ensure that only those applications disclosing arguable cases proceed for further consideration. The ex parte applicant herein obtained judgment in April 2016. Its Bill of Costs was taxed in February 2017. It contends that both the decree and certificate of costs have not been satisfied. It is trite law that normal execution proceedings through attachment and sale of assets would not issue against the government. The only efficacious instrument of execution available to a decree holder such as the ex parte applicant herein is the writ of mandamus. Consequently, I am satisfied that the ex parte applicant’s intended motion is not frivolous, vexatious or hopeless. The ex parte applicant has made out an arguable case. I accordingly grant leave in terms of prayer 1 of the chamber summons. The substantive motion shall be filed and served within 21 days. Mention on 21/11/2017 for further directions. Dated, signed and delivered at Nairobi on this 16th day of October, 2017. B M EBOSO JUDGE