https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3384

Kishau & 2 others (Suing as officials and on behalf of Ewangan Tourism Cultural Centre) v National Land Commission (Environment and Land Case E003 of 2022) [2026] KEELC 3384 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3384 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Case E003 of 2022 LC Komingoi, J June 4, 2026 Between Mutete Ole Kishau 1st Applicant Sitonik Kosikir kaete 2nd Applicant Naimantat Kishan 3rd Applicant Suing as officials and on behalf of Ewangan Tourism Cultural Centre and National Land Commission Respondent Ruling 1.This is ruling in respect of the Notice of Motion dated 30th January, 2026 brought under Section 1 and 1A of the Civil Procedure Act, Cap 21 of the Laws of Kenya Order 1 Rule 15, Order 9 Rule11, Order 22 Rule 52, Order 51 Rule 15 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. 2.It seeks orders: -i.Spentii.Spentiii.Spentiv.That the Honourable Court be pleased to stay permanently the execution of the order made on 15th December 2025 and warrants of arrest issued on 7th January 2026 thereunder.v.That the warrants of arrest dated 7th January 2026 be set aside.vi.That the costs of this application be provided for. 3.The grounds are on the face of the Application that set out in paragraph 1 to 13. 4.The Application is supported by the Affidavit of Brian Ikol, Director Legal Services and Dispute Resolution of the Respondent, sworn on 30th January 2026. 5.The Application is opposed. There is a Replying Affidavit sworn by Sitonik Koisikir Kaete one of the Applicants, sworn on the 6th March 2026. 6.On the 23rd February, 2026 the court with the consent of the parties, directed that the Notice of Motion to be canvassed by way of written submissions. The Respondent’s Submissions. 7.They are dated 13th April, 2026. They raise three issues for determination:i.Whether the Court should grant a stay of execution of the orders issued on 15th December 2025 and consequential warrants of arrest dated 7th January, 2026.ii.Whether the warrants of arrest issued against the Chairperson of the Respondent are lawful and procedurally proper.iii.Whether execution proceedings against a constitutional commission can lawfully proceed under the Civil Procedure Rules. 8.Counsel submitted that the issuance of warrants of arrest against the chairman of the Respondent Commission is not only procedurally flawed but also contrary to binding judicial precedent that ought to be set aside.Further that the Respondent has established that execution process initiated through warrants of arrest against the chairperson is unlawful and irregular. That if allowed will result in grave injustice including unlawful deprivation of liberty. 9.It is submitted that grave injustice will result if execution proceeds and that arresting the chairman would not only be unlawful but would also expose the commission to loss of public funds without restitution. 10.It is further submitted that warrants of arrest issued against the chairperson are fundamentally flawed both in law and procedure as the chairperson is not the accounting officer. He does not execute administrative or financial functions of the commission. 11.It is also submitted that the accounting officer responsible for financial obligations is the Chief Executive Officer, not the chairperson. Reliance is place on the cases of Republic vs Kenya National Examinations Council Exparte Geoffrey Gathenji & 9 Others Civil Appeal No.266 of 1996; Republic vs Kenya Sugar Board (2004) eKLR. 12.It is also submitted that the law is clear that enforcement of decrees against public bodies must be undertaken through Judicial Review Proceedings specifically by way of an order of mandamus. Reliance is placed on the case of Mwatsama vs Attorney General & Another (2025) KEHC. 13.It is also submitted that the decree is directed at the institution yet execution has been improperly targeted at the chairman personally who is not the accounting office and does not manage the day to day administrative or financial affairs of the commission.He prays that the orders issued on the 15th December, 2025 and 7th January, 2026 be set aside. The Applicants’ Submissions. 14.They are dated 29th April, 2026. They raise two issues for determination:i.Whether the execution proceedings were lawful and the Warrants obtained procedurally.ii.Whether this Honourable Court should permanently stay the Warrants of Arrest issued in this matter. 15.Counsel submitted that the averments by the Respondent that execution proceedings cannot issue against the Government on public bodies is not only untrue but misleading. Reliance is placed on the case of Five Star Agencies Ltd & another vs National Land Commission & 2 others (2024) KECA 439 (KLR); Republic vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) eKLR. 16.It is also submitted that the Respondent was served with a certificate of costs dated 16th December, 2021 but failed to settle the same. The Applicants thereafter were granted leave to institute Judicial Review Proceedings and further obtained orders of mandamus compelling the Respondent settle the decretal sum vide a judgment delivered by this Honourable Court on the 1st March, 2023. 17.It is submitted that the warrants of arrest were legally and procedurally issued further that the decretal sum is yet to be paid in full yet the Respondent is aware of the obligation to settle the said sums. 18.It is submitted that the discretion to lift the warrants of arrest ought to be exercised judiciously. Relevance is placed on the case of Innocent G. Ondiek vs Julius Nakaya Kabole (2019) eKLR.Further that the Respondent has not denied service of any documents and or court processes leading to the issuance of the warrants of arrest. 19.It is submitted that the warrants of arrest, were legally and procedurally issued hence no valid reason has been given as to why they should be permanently stayed.That the Respondent has already settled the principal sum of Kshs.13,133,244 but yet to pay the balance. 20.It is also submitted that litigation must come to an end and that a successful party should enjoy the fruits of their judgment.They pray that the Application be dismissed with costs. Analysis And Determination 21.I have considered the Notice of Motion, the affidavit in support, the response thereto, the written submissions and the authorities cited. The issue for determination is whether this Application is merited. 22.It is not in dispute that the Respondent was served with a certificate of order and certificate of costs dated 10th February, 2021 but failed to settle the same. The Applicants were thereafter granted leave to institute Judicial Review Proceedings and further obtained orders of mandamus compelling the Respondent to settle the decretal sum vide a judgment delivered by this Honourable Court on the 1st March, 2023. 23.The Procedure for initiating execution against the Government is outlined in Section 21 of the Government Proceedings Act. In the case of Republic vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) eKLR the court stated thus:“The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21 (1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provided that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon. Attorney General. The certificate of order against the Government should be issued but the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon. Attorney General, Section 21 (3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with the any interest lawfully accruing thereon. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues.” 24.It is clear that the Chairman is not the accounting officer of the Respondent (National Land Commission). 25.In the ruling dated 3rd May, 2024 Hon. Ombwayo J found, “that the Chairman National Land Commission, was aware of the court order but has fully disobeyed court and therefore he is hereby committed to civil jail for a period of six months or to personally pay a fine of Kshs.100,000 for the said contempt”. 26.I believe this is what gave rise to the warrants of arrest dated 7th January, 2026. 27.I am of the opinion that the Respondent was aware of these proceedings from inception but chose not to participate. 28.I agree with the Respondent’s submission that the chairman is not the accounting officer of the Respondent. I will however decline to permanently stay the orders made on 15th December, 2025 and the warrants of arrest dated 7th January, 2026. 29.I will only set aside the warrants of arrest dated 7th January, 2026 to the extent that they refer to the Chairman of the Respondent. 30.The Applicants herein are given fourteen (14) days to file an application to amend the same to reflect the Chief Executive Officer as the contemnor. 31.The Application has succeeded partially. I order each party to bear own costs. RULING DATED SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 4TH DAY OF JUNE 2026.L. KOMINGOIJUDGEIn the presence of:-Mr. Chacha for Mr. Solonka for the Applicants.Ms. Wanjiku for Mr. Koceyo for the RespondentCourt Assistant: Derrick/Irene