[2017] KEHC 4870 (KLR)
The court found that the ex-parte applicants had established the existence of a decree requiring the 1st Respondent to pay a decretal amount, had made a demand for payment, and that the 1st Respondent had failed to comply. The court held that the conditions for the grant of an order of mandamus were satisfied, as...
Source-derived case information.
- Citation
- [2017] KEHC 4870 (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; Respondent: Holburn Properties Ltd.; Applicant: Mariam Mueni Musembi; Applicant: Timothy Muchina Chege
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 3 of 2017
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application allowed
- Legal Topics
- Judicial Review, Mandamus, Enforcement of Decree, Public Officer Duties, Land Disputes
- 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
Holburn Properties Ltd.
Respondent
Mariam Mueni Musembi
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 compelling the 1st Respondent to settle the decretal amount as per the decree in Malindi ELC No. 102 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 ex-parte applicants had established the existence of a decree requiring the 1st Respondent to pay a decretal amount, had made a demand for payment, and that the 1st Respondent had failed to comply. The court held that the conditions for the grant of an order of mandamus were satisfied, as the 1st Respondent, a public officer, had a statutory duty to settle the decree. The absence of any response or attendance by the 1st Respondent further supported the applicants' case. Consequently, the court issued an order of mandamus compelling the 1st Respondent to settle the decree and awarded costs to the ex-parte applicants.
Court Disposition
application allowed
Orders
- An order of mandamus is issued compelling the 1st Respondent to settle the decree issued on 17th November, 2015 by the Environment and Land Court at Malindi in Civil Case No. 102 of 2008.
- 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. 3 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. 102 OF 2008 BETWEEN MARIAM MUENI MUSEMBI & ANOTHER VERSUS THE COMMISSIONER OF LANDS AND 6 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
THE LANDS REGISTRAR, KILIFI…………………………….2ND RESPONDENT
THE HON. ATTORNEY GENERAL…………………………...3RD RESPONDENT
WILSON GACHANJA………………………………………..…4TH RESPONDENT
ALFRED CHERWON…………………………………………...5TH RESPONDENT
JAMES RAYMOND NJENGA……………………………........6TH RESPONDENT
HOLBURN PROPERTIES LTD....………………………..…...7TH RESPONDENT
AND
MARIAM MUENI MUSEMBI………………………..1ST EX-PARTE APPLICANT
TIMOTHY MUCHINA CHEGE……………….….…..2ND EX-PARTE APPLICANT
JUDGEMENT
1. The 1st ex-parte Applicant Miriam Mueni Musembi and the 2nd ex-parte Applicant Timothy Muchina Chege hold a decree in Malindi ELC No. 102 of 2008 (formerly Nairobi High Court Civil Case No. 3107 of 1997). 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), James Raymond Njenga (6th Respondent) and Holburn Properties Limited 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 seek 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 grant of an order of mandamus. An order of mandamus will therefore issue ordering the 1st Respondent to settle the decree issued on 17th November, 2015 by the Environment and Land Court at Malindi in Civil Case No. 102 of 2008 (formerly Nairobi High Court Civil Case No. 3107 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