[2017] KEHC 4762 (KLR)
The court found that the applicants had established the existence of a decree requiring the 1st Respondent to pay a decretal amount, that the 1st Respondent had been served with the decree and requested to pay, and that the 1st Respondent had failed to perform the statutory duty of settling the decree. The court...
Source-derived case information.
- Citation
- [2017] KEHC 4762 (KLR)
- Parties
- Applicant: Rose Kavita Mwivithi; Applicant: Julius Mwivithi Nzukuh; Applicant: Timothy Muchina Chege; Respondent: Commissioner of Lands; Respondent: Lands Registrar Kilifi; Respondent: Hon. Attorney General; Respondent: Wilson Gachanja; Respondent: Alfred Cherwon; Respondent: James Raymond Njenga
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 4 of 2017
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- Application allowed. Order of mandamus granted.
- Legal Topics
- Judicial Review, Mandamus, Enforcement of Decrees, Public Officer Duties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Kavita Mwivithi
Applicant
Julius Mwivithi Nzukuh
Applicant
Timothy Muchina Chege
Applicant
Commissioner of Lands
Respondent
Lands Registrar Kilifi
Respondent
Hon. Attorney General
Respondent
Wilson Gachanja
Respondent
Alfred Cherwon
Respondent
James Raymond Njenga
Respondent
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the applicants are entitled to an order of mandamus compelling the 1st Respondent to settle the decretal amount as per the decree in Malindi ELC No. 107 of 2008.
- 2 Whether the 1st Respondent has failed to perform a statutory duty to pay the decretal amount.
Ratio Decidendi
The court found that the applicants had established the existence of a decree requiring the 1st Respondent to pay a decretal amount, that the 1st Respondent had been served with the decree and requested to pay, and that the 1st Respondent had failed to perform the statutory duty of settling the decree. The court held that the conditions for the issuance of an order of mandamus were satisfied, as the applicants had demonstrated a clear legal right and the respondent's failure to act. Consequently, the court issued an order of mandamus compelling the 1st Respondent to settle the decree issued by the Environment and Land Court at Malindi in Civil Case No. 107 of 2008. The applicants were...
Court Disposition
Application allowed. Order of mandamus granted.
Orders
- An order of mandamus is issued directing the 1st 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 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. 4 OF 2017
IN THEATER OF AN APPLICATION FOR ORDERS OF JUDICIAL REVIEW IN NATURE OF MANDAMUS
AND
IN THE MATTER OF JUDGEMENT AND DECREE IN MALINDI ELC CIVIL SUIT NO. 107 OF 2008 BETWEEN ROSE KAVITA MWIVITHI & 5 OTHERS 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
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
ROSE KAVITA MWIVITHI………………..……………1ST EX-PARTE APPLICANT
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 2nd 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 (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. Through the notice of motion dated 18th 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 1st 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