Commissioner of Lands and 5 Others v The Commissioner of Lands & 5 others

JULIUS MWIVITHI NZUKUH…………..……………...2ND EX-PARTE APPLICANT TIMOTHY MUCHINA CHEGE…………......…………...3RD EX-PARTE APPLICANT JUDGEMENT 1. The 1st ex-parte Applicant Rose Kavita Mwivithi, the 2 nd ex-parte Applicant Julius Mwivithi Nzukuh and the 3rd ex-parte Applicant Timothy Muchina Chege hold a decree in Malindi ELC No. 107 of 2008 (formerly Nairobi High Court Civil Case No. 711 of 1997). They allege that the Commissioner of Lands (1st Respondent), Lands Registrar Kilifi (2nd Respondent), the Honourable Attorney General (3 rd Respondent), Wilson Gachanja (4th Respondent), Alfred Cherwon (5th Respondent) and James Raymond Njenga (6th Respondent) who are the judgement debtors in that matter have failed, refused or neglected to pay the decretal amount despite service of the decree. 2. Through the notice of motion dated 18 th April, 2017, the ex-parte applicants pray for an order of mandamus compelling the 1st Respondent to settle the decretal amount. 3. There is evidence through the affidavit sworn on 24th April, 2017 by Kimani Karebe that service of the notice of motion indicating the hearing date of 31st May, 2017 was effected upon the 1st Respondent. 4. The 1st Respondent did not attend the hearing and neither has any response been filed. 5. An order of mandamus is issued to compel the performance of a statutory duty by a public officer or body - see Kenya National Examination Council v Republic Ex-parte Geoffrey Gathinji Njoroge & 9 Others [1997] eKLR. 6. The ex-parte applicants have through their application established that they have a decree directing the 1st Respondent to pay them the amount indicated in the said decree. They have also shown that they have asked the 1st Respondent to pay the said decretal amount. They have further demonstrated that the 1st Respondent has a duty to discharge the said decree but has failed to do so. 7. In the circumstances of this case, the ex-parte applicants have met the conditions for the issuance of an order of mandamus. An order of mandamus will therefore issue directing the 1 st Respondent to settle the decree issued on 17th November, 2015 by the Environment and Land Court at Malindi in Civil Case No. 107 of 2008 (formerly Nairobi High Court Civil Case No. 711 of 1997). The ex-parte applicants will have the costs of the proceedings from the 1st Respondent. Dated, signed and delivered at Malindi this 29th day of June 2017. W. KORIR, JUDGE OF THE HIGH COURT

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