https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3383

Five Star Agencies Limited v National Land Commission (Environment and Land Case 445 of 2014) [2026] KEELC 3383 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3383 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 445 of 2014 MN Kullow, J June 4, 2026 Between Five Star Agencies Limited Applicant and National Land Commission Respondent Ruling 1.The motion before court is dated 3rd March 2025 in relation to LR 209/9727(IR 37790) herein referred to as the suit property. The prayers sought have been framed as follows;a.This Honourable Court do issue an order of mandamus directed to the Chairman National Land Commission and the Chief Executive Officer National Land Commission to pay the Applicant/Judgement creditor within such times as the court will specify the sum of Ksh 909,023,500/= together with further interest from 3rd December 2024 until payment in full being the sum due and owing as compensation for the parcel of land comprised in title no LR 209/9227(IR 37790) in Nairobi which the respondent compulsory acquired from the applicant.b.That in default of payment within the specified period the chairman National Land commission and the Chief Executive Officer, National Land Commission be summoned to attend court for failure to comply with the orders issued herein and be cited for contempt of court and penalized appropriately.c.Costs be awarded to the applicant. 2.The application is supported by the affidavit of the ex parte applicant’s Director One Abdulsalam Shariff Abdulahi sworn on an even date. 3.According to the applicant, the court decided on matter and entered a judgement in favour of the applicant on the 24th November 2014 for a sum of Ksh 413, 192,500/= which sum the court indicated would accrue interest from the date of judgement until payment in full. 4.That the judgement gave rise to an appeal which was heard and dismissed by a judgement on the 12th April 2024 and directed that the decree should be satisfied and directed for the enforcement of it through mandamus proceedings. 5.That there was further an appeal at the supreme court by KENHA which was dismissed which led the applicant to extract a certificate of order against the government and served on the respondent through the director and chief executive officer and further served a demand letter for payment of the decretal sum which demand has not been met by the respondent for a period of close to 11 years prompting the filing of the application seeking for orders of mandamus and in default of payment the respondent’s official that is the chief executive officer to be held in contempt. Reply 6.The Application is opposed by the Respondent. The Respondent filed its Replying affidavit through its chief officer, Kabale Tache Arero sworn on the 17th December 2025.He outlined the Respondent’s role in compulsory acquisition is to oversee the acquisition process and facilitating the acquisition for the acquiring entity and that any financial responsibilities were on the acquiring entity in this case KENHA .That KENHA did not deposit the funds to the respondent to disburse to the affected persons after the process of compulsory acquisition, despite following up with the entity. He deponed that it will be unfair to fine/jail the chief executive officer of the respondent for non-payment of the decretal sum together with interest having not received the money from KENHA 7.In a rejoinder the ex-parte Applicant filed a further Afidavit sworn on 26th April 2025.He deposed that the the averments contained in the Replying Aaffidavit were untenable being that the applicant had established that the respondent is bound by the Land Act and the constitution to make just and prompt payment for all Land that has been compulsorily acquired and that the argument raised that the respondent had sought for budgetary allocation to pay the decretal sum, had not been backed by any proof. 8.That non-allocation of funds by parliament was not a justifiable excuse for non-payment of the decretal sums ordered to be paid by the government 9.The applicant further in an affidavit dated 9th February 2026 indicated that the attempt by the respondent to shift blame to KENHA was merely a delaying tactic to evade the payment of the sums which has been the case since the decree was issued. 10.The Application was canvassed by way of written submissions with the applicant filing submissions dated 10th April 2025 while the respondent filed submissions dated 25th April 2025. Applicant’s submissions 11.The applicant reiterated the contents as in affidavits filed that is the supporting affidavit, the further affidavit and the joinder affidavit. He relied on the provision of article of article 40(3) and section 111 of the Land Act that spoke to the issue of payment of compensation to a party whose land had been compulsorily acquired. Counsel submitted that being that the amount after compulsorily acquisition occurred was not paid, the respondent had the statutory obligation to open a special account into which the respondent was to pay interest on the amount awarded to the applicant. Counsel relied on the case of Republic Vs Attorney General ex parte James Alfred Koroso JR 44/2012 12.He further submitted that the chief executive officer was the secretary to the respondent and the accounting officer who was the person to whom the certificate of order was rightfully served upon as section 21(3) of the government proceedings Act. 13.Counsel relied on an earlier decision in this matter where the court directed that the only remedy was a government agency has been served with a certificate of order and fails to satisfy would be to initiate mandamus proceedings as against the accounting officer. He submitted that the ex parte applicant had established a duty to pay 14. Respondent’s submissionsThe respondent submitted that the application is defective and should be dismissed being that it had been filed in the trial court after delivery of a judgement and that it ought to have been instituted it via a miscellaneous application.The respondent further submitted that the orders of mandamus cannot be issued as against the chairman of the respondent as per the procedure laid out for execution in section 21 of the Government Proceedings Act. Counsel relied on several cases including the case of R vs The principal secretary Ministry of Defence & Another Ex parte David Gitau Njau and 9 othersOn the issue of whether the mandamus orders could be granted, the respondent submitted that the applicant ought to prove deliberate refusal by the respondent to comply in settling the decretal amount. It was submitted that the respondent had given evidence to show it made deliberate efforts to contact the acquiring authority to compensate the applicant. That it was willing to compensate the applicant on receiving of the funds from the acquiring agency, which funds had not been remitted to them. Counsel relied on the case of Republic vs the County secretary, Nairobi City County & Another Ex parte Prof Tom Ojienda & Associates (2019)eKLR Analysis and Determination 15.The key issue for determination is whether the application is merited.It is not in dispute that the Respondent is created under Article 253 of the Constitution of Kenya as body corporate with perpetual succession and a seal and capable suing and being sued in its corporate name. Article 260 defines state organ means a Commission, office agency or body established under the Constitution. 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 v 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;1.“ 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.2.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.3.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.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 person shall be 16.I find that the procedure set out in the above law applies to the 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; andc.the proper and diligent implementation of Part IV of this Act.” 17.It is on record that the Judgement of the Court was delivered on the 24th November 2014 in favour of the Applicants for the sum of Ksh 413,192, 500/= which sum was to accumulate interest until payment in full. The applicant then went ahead to serve the certificate of order on 10th January 2025 being that there had been a series of appeals after the said judgement which appeals were dismissed. 18.The Respondent has stated that it was not responsible for the funding of the acquisition of the suit property and as no funds have been availed to it by KENHA being the body that was acquiring the land as such had no funds to satisfy the Judgement shifting the blame to KENHA.I find that this are issues the Court ought to have been canvassed at the hearing of the suit and as such are being raised too late after judgement had been rendered. The Judgement of the Court has not been vacated and still remains unexecuted. 19.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 outstanding for close to 12 years now. 20.I find merit in the application and do grant it as prayed. Final dispositionFor the foregoing reasons, I make the following ordersa.An order of mandamus is hereby issued and directed to the Chief Executive Officer National Land Commission to pay the ex parte Applicant herein the decretal sum of Ksh 909,023,500/= together with the interest accumulated from 24th November 2014 until the payment in full within ninety (90) days of the delivery of this ruling.b.The matter will be mentioned on the 30th of September 2026 to confirm compliance with the above orders, failure to which summons to issue to the Chairman National Land commission and the Chief Executive Officer, National Land Commission to show cause why he should not be cited and punished for contempt of court for the violation of the order above.c.The costs shall be to the Applicant.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 4TH DAY OF JUNE 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Ngatia for (SC)..............for the Decree HolderMr. Austin Odoyo...............for the Judgment DebtorPhilomena W . Court Assistant