[2017] KEHC 4884 (KLR)
The court found that the ex-parte applicants had established the existence of a valid decree requiring the 1st Respondent to pay a decretal amount, that the 1st Respondent had been duly served with the decree and the application for mandamus, and that the 1st Respondent had failed to comply with the statutory duty...
Source-derived case information.
- Citation
- [2017] KEHC 4884 (KLR)
- Parties
- Applicant: Republic; Respondent: Commissioner of Lands; Respondent: Lands Registrar, Kilifi; Respondent: Hon. Attorney General; Respondent: Wilson Gachanja; Respondent: Alfred Cherwon; Respondent: James Raymond Njenga; Applicant: Joyce Nyokabi (Administrator of David Kamau Mwangi); Applicant: Timothy Muchina Chege
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 2 of 2017
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application allowed
- Legal Topics
- Judicial Review, Mandamus, Enforcement of Decree, Public Officer Duties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Commissioner of Lands
Respondent
Lands Registrar, Kilifi
Respondent
Hon. Attorney General
Respondent
Wilson Gachanja
Respondent
Alfred Cherwon
Respondent
James Raymond Njenga
Respondent
Joyce Nyokabi (Administrator of David Kamau Mwangi)
Applicant
Timothy Muchina Chege
Applicant
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the ex-parte applicants are entitled to an order of mandamus to compel the 1st Respondent to settle the decretal amount as per the decree in Malindi ELC No. 120 of 2011.
- 2 Whether the statutory conditions for the grant of an order of mandamus have been met.
Ratio Decidendi
The court found that the ex-parte applicants had established the existence of a valid decree requiring the 1st Respondent to pay a decretal amount, that the 1st Respondent had been duly served with the decree and the application for mandamus, and that the 1st Respondent had failed to comply with the statutory duty to settle the decree. The court held that the conditions for the grant of an order of mandamus were satisfied, as the applicants had a clear legal right to enforcement of the decree and the 1st Respondent had a corresponding statutory duty to pay. The absence of any response or opposition from the respondents further supported the applicants' case. Accordingly, the court issued...
Court Disposition
application allowed
Orders
- An order of mandamus is issued directing the 1st Respondent to settle the decree issued on 17th November, 2015 by the Malindi Environment and Land Court in Civil Case No. 120 of 2011 (formerly Nairobi High Court Civil Case No. 1012 of 1998).
- The ex-parte applicants are awarded the costs of these proceedings from the 1st Respondent.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
JUDICIAL REVIEW NO. 2 OF 2017
IN THEATER OF AN APPLICATION FOR ORDERS OF JUDICIAL REVIEW IN THE NATURE OF MANDAMUS
AND
IN THE MATTER OF JUDGEMENT AND DECREE IN MALINDI ELC CIVIL SUIT NO. 120 OF 2011 BETWEEN JOYCE NYOKABI & ANOTHER VERSUS THE COMMISSIONER OF LANDS AND 5 OTHERS
AND
IN THE MATTER OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA
AND
IN THE MATTER OF ORDER 53 CIVIL PROCEDURE RULES
REPUBLIC……………………………………………….………..APPLICANT
VERSUS
THE COMMISSIONER OF LANDS…………………….…1ST RESPONDENT
LANDS REGISTRAR, KILIFI………………………….......2ND RESPONDENT
THE HON. ATTORNEY GENERAL………………….........3RD RESPONDENT
WILSON GACHANJA………………………........……….4TH RESPONDENT
ALFRED CHERWON………………………………....…...5TH RESPONDENT
JAMES RAYMOND NJENGA……………………......…...6TH RESPONDENT
AND
JOYCE NYOKABI
(Administrator of David Kamau Mwangi)…..1ST EXPARTE APPLICANT
TIMOTHY MUCHINA CHEGE……………….... 2ND EX-PARTE APPLICANT
JUDGEMENT
1. The 1st ex-parte Applicant, Joyce Nyokabi and the 2nd ex-parte Applicant, Timothy Chege hold a decree in Malindi ELC No. 120 of 2011 (formerly Nairobi High Court Civil Case No. 1012 of 1998). They allege that the Commissioner of Lands (1st Respondent), the Lands Registrar Kilifi (2nd Respondent), the Honourable Attorney General (3rd 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. They have therefore filed the notice of motion application dated 18th April, 2017, in which they seek an order of mandamus directing the 1st Respondent to settle the decretal amount.
3. There is evidence through the affidavit of Kimani Karebe sworn on 24th April, 2017 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 entered.
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 grant of an order of mandamus. An order of mandamus will therefore issue directing the 1st Respondent to settle the decree issued on 17th November, 2015 by the Malindi Environment and Land Court in Malindi in Civil Case No. 120 of 2011 (formerly Nairobi High Court Civil Case No. 1012 of 1998). 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