https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3671

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLJR E058 OF 2025** **DEMBENA INTERNATIONAL LIMITED………………….….……EX PARTE APPLICANT** **-VERSUS-** **NATIONAL LAND COMMISSION………………………..…..….….….1ST RESPONDENT** **MNAGAING DIRECTOR** **NATIONAL LAND COMMISSION …………………………..……….2ND RESPONDENT** **RULING** **Background** 1. There are two applications before this court. The first is a Notice of Motion application dated 10th April 2026 and that of 18th August, 2025 respectively which seeks for the following orders;- 2. Spent 3. **THAT** this honourable court to be pleased to stay the execution of the freezing orders issued on the 29/9/2025 pending hearing and determination of this application 4. Costs of the application 5. The application is premised in the grounds as in the supporting affidavit of Brian Ikol sworn on an even date. He deponed that the Ex Parte Applicant had commenced an application seeking to commence judicial review orders on the 1st Respondent. That the 1st Respondent filed a Notice of Preliminary objection dated 9/09/2025 and that this court in dismissing the said Notice of Preliminary Objection issued orders on the 29/0/2025 freezing the accounts of the 1st Respondent. 6. He deponed that the Ex Parte applicant has moved to court for orders of mandamus and is apprehensive that the Ex Parte applicant will seek to have the frozen sums released to it which funds he indicated are held in trust for various government agencies undertaking compulsorily acquisition. That unless this court intervenes the various government projects will be affected hence the application. **Response** 1. The Ex Parte Applicant opposed the application in a replying affidavit sworn by its director Isayas Desale Berhe sworn on the 22nd April 2026.He deponed that the application was res judicata an application dated 30th September 2025 which sought the same orders. 2. That further the Ex parte Applicant had not filed any garnishee proceedings rather an application seeking for mandamus to compel the 1st Respondents to satisfy the court decree. He further indicated that as per the 1st Respondent’s assertions the monies which had been frozen were for compensation of victims whose land had been compulsorily acquired and the Ex parte Applicant was claiming for the same compensation, hence there was no need to play bias and fail to use the sums for the same reason it was intended to. He deposed that the argument raised by the applicant for seeking to unfreeze the counts had no evidence whatsoever to indicate that indeed the funds did not belong to the 1st Respondent. 1. The applicant filed a supplementary affidavit sworn on the 12th May 2026 where the deponent Brian Okol reiterated that the sums were held in trust for government agencies in the Land compensation Fund Account for use of compensation in matters relating to compulsory acquisition. He further deponed that the 1st Respondent being a government institution was exempted from execution by way of garnishee or freezing orders 2. The court directed the application to be disposed by way of written submissions and both the Ex parte Applicant and the Applicant/1st Respondent complied 3. The applicant submitted on one issue which is whether the freezing orders dated 29/09/2025 should be set aside. Counsel reiterated the argument that the 1st Respondent was a government agency and hence garnishee proceedings could not be initiated against it. Counsel relied on the provisions of **Section 21(4) of the Government Proceedings Act, Order 29 rule 2(2) of the civil procedure rules, section 26 A of the National** **Land Commission Act**. Counsel also relied on a number of authorities including **Five star Agencies Ltd & Another Vs National Land commission & 2 others (2024) KECA 439 (KLR)** 1. The Ex parte Applicant filed submissions dated 13th May 2026. Counsel submitted that the applicant's Notice of Withdrawal to the application dated 30th September 2025 was done in bad faith as it was only filed to defeat the Ex parte Applicant’s valid claim of sub judice. That order 25 rule 1 indicated that a party could only file a Notice of withdrawal if the other side had not taken any significant step. That the Notice of Withdrawal did not cure the nullity being that the 2nd application had been filed in violation of statutory provisions an should be struck out. On the issue of the matter being brought in the form of garnishee proceedings Counsel reiterated the averments in the replying affidavit indicating this was a judicial review matter seeking for mandamus and not orders as against the bank to compel release of the monies to the Ex parte Applicant. Further he argued that the Applicant had not produced any evidence to back up the claims that the monies in the frozen accounts, were not the 1st Respondents. To address the argument that the provisions of **Section 26A of the National Land Commission** did bar attachment of the 1st Respondent’s bank account counsel submitted that the law applies prospectively and not retrospectively quoting the supreme court decision in **Samuel Kamau Macharia & Another Vs Kenya commercial Bank Ltd & 2 others (2012)** The same sentiments were reiterated in the supplementary dated 13th April 2026. 1. The second application is the Notice of Motion dated 18th August 2025 which seeks the following orders; 2. An order of Mandamus be and is hereby issued to remove this Honourable Court to compel the Respondents to satisfy the decretal amount of Kes. 503,207,157.00 together with the interest accrued pursuant to Section 117 (1) of the Land Act (total sum amounting to Kes. 1,023,147,777-99 as of 28% July 2025) as per the Judgment entered on 2™ October 2024 by Hon. Lady Justice L. Mbugua in Nairobi ELC OS No. E005/2023 Dembena International Limited v National Land Commissions. 3. That Applicant in response filed a Notice of Preliminary Objection dated 3rd September 2025 which was heard and dismissed. The parties filed their respective submissions with the Ex parte Applicant filing submissions dated 12th February 2026 and further supplementary submissions dated 13th April 2026 while the 1st Respondent filed submissions dated 9th April 2026 1. The ex parte Applicant submitted that the orders for mandamus was a remedy under judicial review entrenched in **Article 23 of the constitution**. That execution of the government was prohibited by section 21(4) of the government proceedings Act which left the only remedy available to be judicial review He submitted on the reasoning as in the case of **Republic Vs Attorney General 7 Another Ex parte James Alfred Koroso (2013) eKLR,** 2. The 1st Respondent submitted that the orders of mandamus were not warranted as it should be the last remedy available and further the orders could not be directed at any person in the 1st Respondent but the accounting officer as captured in **Section 30 of the National Land Commission Act** relying on the case of **R vs Principal secretary ministry of defence & Another Ex parte David Gitau Njau & 9 others** 3. Counsel further reiterated that the order to have the sums held in the accounts of the 1st Respondent could not issue as the 1st Respondent was protected by section 26A of the National Land commission. **Analysis and determination** 1. Having looked at both applications, the responses and the submission filed, I will proceed to first determine the application dated 19th April 2026. From the said application, the issue for determination is; Whether The application is res judicata to the application dated 30th September 2025. 1. Before diving into the issue of res judicata, it would be prudent to establish whether the Notice of Withdrawal dated 23rd April 2026 filed by the Applicant has any implication so as to bar the Ex parte Applicant from raising the plea of subjudice. 2. Having looked at the application being cited dated 30th September 2025, the court is called upon to look at the requirements that one must prove for the application of resjudicata. The doctrine of res judicata is founded on public policy and is aimed at achieving two objectives namely; that there must be finality to litigation and the individual should not be harassed twice with the same account of litigation. In considering whether an issue is Res Judicata the court considers; 3. Whether the issue was directly and substantially in issue in the former Suit 4. Whether suit was between the same parties or parties claiming under them. 5. The parties were litigating under the same title. 6. The issues were heard and finally determined in the former suit. 7. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue was raised 8. It is not disputed that the issue in the current application is the same issues raised in the application dated 30th September 2025. The parties are still the same parties as in this application. Having settled the questions whether the subject matter and issues in the previous suits are the same as in the instant matter, the parties are the same, the next issue for determination is whether the matter was heard and determined on merit . The court has perused the pleadings and it affirms that the application dated 30th September 2025 was and is still pending before this court and as such the requirement for finality of the previous matter for the doctrine of res judicata to hold, has not been met hence the application is not res judicata. 9. Moving on to the merits of the application, the Applicant seeks to stay the execution of the freezing orders issued on the 29th September 2025.The said orders emanated from the application dated 28th July 2025 which application was seeking for leave for judicial review for orders of mandamus to compel the 1st Respondent to pay the decretal sum and the orders to freeze the accounts of the Respondent held in KCB bank Limited NSSF branch and National bank of Kenya, Hill plaza. From the onset one can see that the application was to initiate judicial review proceedings and not to compel the payment of the debt owed by the 1st Respondent to the Ex parte Applicant by the bank to make it a garnishee application. 10. The Applicant has further relied on the provision of S**ection 26A of the National Land Commission**. The said Section provides an express statutory prohibition against the issuance of Garnishee or charging orders against any bank account maintained by the Commission. As already submitted before these proceedings are not garnishee in nature and as such the arguments raised would only apply if the Ex parte Applicant was seeking for garnishee orders but as it stand, the Ex parte Applicant is well mandated by **Section 21 of the Government Proceedings Act** to initiate judicial review proceedings. 11. Having established that these are not garnishee proceedings the court then moves to determine whether the payer for stay of execution can be sustained. Stay of execution is governed by **Order 42 Rule 6 of the Civil Procedure Rules** where a party intends to appeal a decision of the court. In this instant there is no appeal on record to which the orders of stay being sought are anchored on. Nonetheless, this Court retains an inherent discretion to review and set aside its own orders in appropriate circumstances, and the application for setting aside falls to be considered on its merits. The court considers the accounts tied to the 1st Respondents as special accounts in which the funds in the said accounts do not belong to the Commission but are received from government acquiring agencies and held in trust for project-affected persons awaiting compensation. They are trust monies held for a designated and statutorily prescribed purpose, and their withholding would occasion grave prejudice not only to the Commission but to innocent third parties who are entitled to receive compensation for land compulsorily acquired from them. In my view it would be unfair to continue having the sums in the said accounts frozen . 1. This Court is however alive to reasoning of **Justice Patrick Kiage JA in Civil Appeal No. E274 of 2022, National Land Commission Vs Tom Ojienda & Associates; National Bank of Kenya and Another (Garnishee),** where the learned Judge remarked with evident disapproval that: “*This is where Courts might well consider themselves ill-used by litigants unwilling to do that which they must unless the Courts speak."* This Court associates itself fully with those observations. The 1st Respondent has admitted the debt, has offered no credible commitment to pay it, and has not come before this Court with any genuine legal defence to the debt itself but with a series of procedural objections designed to frustrate enforcement. The principle that a successful litigant is entitled to the fruits of their Judgment, was affirmed in **Machira t/a Machira & Co. Advocates Vs East African Standard [2002] KEHC 1167 (KLR**) where the Court held;“*That the ordinary principle is that a successful party is entitled to the fruits of his Judgment or of any decision of the Court giving him success at any stage," must be given meaningful effect.* The Decree Holder/Ex parte Applicant has waited since 2024 for satisfaction of of the entire decretal sum. That state of affairs cannot be permitted to continue indefinitely. The 1st Respondent is still obligated to satisfy the decretal amount from other sources of funds available to it. 1. On the application dated 18th August 2025, it is not in dispute that though the Respondent is an independent Commission it is part and parcel of the state organs of the Government of Kenya. I am guided by the decision of the Court in **Okiya Omtatah Okoiti & Anor Vs AG & 7 Others [2023] eKLR** which state that Commissions though independent are part of the national governmental structure of the state of Kenya and that its independence is majorly to protect it from interference in carrying out its mandate. The National Land Commission Act does not provide how execution against the Respondent should be carried out. The execution procedure therefore falls within the one provided for in **Section 21 of the Government Proceedings Act** which states as follows; 2. *“ Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any Court in favour of any person against the Government as such, the proper officer of the Court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that persona certificate in the prescribed form containing particulars of the order: Provided that, if the Court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the Applicant.* 3. *A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney General.* 4. *If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon, Provided that the Court by which any such order as aforesaid is made or any Court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein* 5. *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 person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.* 6. I find that the procedure set out in the above law applies to the 1st Respondent. **Section 20 (3) and (4) of the National Land Commission Act** provides for the office and appointment of the Secretary of the Commission who shall be the accounting officer of the Commission and responsible for the discharge of the duties of the Commission. It states as follows; “(3) The secretary shall— a) be the chief executive officer er of the Commission and head of the secretariat and shall be responsible to the Commission……………… (4) The secretary, shall be the accounting officer of the Commission and shall be responsible to the Commission for— a. all income and expenditure of the Commission; b. all assets and the discharge of all liabilities of the Commission; and c. the proper and diligent implementation of Part IV of this Act.” 1. It is on record that the Judgement of the Court was delivered on the 2nd October 2024 in favour of the Ex parte Applicant for the sum of Ksh 503,207,157.00= being the balance of the award of Ksh 804,144,317.00. The Ex parte Applicant is seeking to have the 1st Respondent compelled to pay the balance and has instituted this proceedings which as stated above are judicial review proceedings. The Judgement of the Court has not been vacated and still remains unexecuted. 2. It would be in the interest of justice to allow the application so as to allow the Applicant enjoy the fruits of their long-awaited Judgement having been partially compensated and the balance outstanding for 2 years now. I find merit in the application dated 18th August 2025 and do grant it as prayed. **Final disposition** For the foregoing reasons, I make the following orders; 1. The Notice of Motion dated 10th April 2026 is not merited and is dismissed 2. An order of mandamus is hereby directed to the Chief Executive Officer National Land Commission to pay the Ex parte Applicant herein the decretal sum of Ksh 503,207,157.00/= together with interest accrued since the delivery of the said judgement on the 2nd October 2024 until payment in full. 3. In default of Order (i) above KCB bank Limited NSSF branch and National bank of Kenya, Hill plaza are directed to remit the said decretal sums from the 1st Respondent’s frozen accounts to the Applicant and or his Advocates on record. 4. Given the circumstances of this matter, including the 1st Respondent’s prolonged failure to satisfy an undisputed debt and its conduct in these proceedings, the costs of both applications shall be borne by the 1st Respondent, the National Land Commission. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **11th** day of **June 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **Mr. Mbaji** for the Ex-parte Applicant **Mr. Odoyo** for the Respondent **Philomena W .** Court Assistant