[2024] KEELC 6355 (KLR)
The court found that the applicant had complied with all statutory requirements for the issuance of an order of mandamus, including serving the decree and certificate of order on the respondent as required by Section 21 of the Government Proceedings Act. The respondent failed to satisfy the decree or provide any...
Source-derived case information.
- Citation
- [2024] KEELC 6355 (KLR)
- Parties
- Applicant: Republic; Respondent: The National Land Commission; Applicant: David Muriungi M’inoti
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application E007 of 2024
- Procedural Posture
- Judicial Review Application / Judgment
- Outcome
- application allowed
- Judges
- CK Nzili
- Legal Topics
- Mandamus Orders, Public Duty Enforcement, Government Liability, Land Compensation, Judicial Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The National Land Commission
Respondent
David Muriungi M’inoti
Applicant
Procedural Posture
Judicial Review Application / Judgment
Legal Issues
- 1 Whether the respondent is under a statutory duty to satisfy the decree and certificate of order issued in Meru Chief Magistrates Court ELC No. E026 of 2022.
- 2 Whether the applicant has met the legal requirements for the grant of an order of mandamus compelling payment by the respondent.
- 3 Whether the respondent has provided any lawful justification for non-payment of the decretal sum.
Ratio Decidendi
The court found that the applicant had complied with all statutory requirements for the issuance of an order of mandamus, including serving the decree and certificate of order on the respondent as required by Section 21 of the Government Proceedings Act. The respondent failed to satisfy the decree or provide any justification for non-payment. The court held that the respondent, through its accounting officer, had a clear statutory duty to pay the decretal sum as specified in the certificate of order and decree. The absence of any appeal or setting aside of the decree and certificate of order, coupled with the respondent's failure to respond or appear, left the court with no alternative...
Court Disposition
application allowed
Orders
- An order of mandamus is issued compelling the secretary National Land Commission to pay the applicant Kshs.442,060 as per the decree and Kshs.82,000 as per the certificate of order, totaling Kshs.524,060 plus interest at 14% per annum from 16.3.2022 until payment in full.
- Costs of the application are awarded to the applicant.
Full Case Text
Judgment text and source record
26 paragraphs
Republic v The National Land Commission; M’inoti (Exparte Applicant) (Judicial Review Application E007 of 2024) [2024] KEELC 6355 (KLR) (25 September 2024) (Judgment)
Neutral citation: [2024] KEELC 6355 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Judicial Review Application E007 of 2024
CK Nzili, J
September 25, 2024
Between
Republic
Applicant
and
The National Land Commission
Respondent
and
David Muriungi M’inoti
Exparte Applicant
Judgment
1. The exparte applicant by a notice of motion dated 27. 6.2024 seeks an order of mandamus compelling the respondent to honor a decree and certificate of an order issued in Meru Chief Magistrates Court ELC No. E026 of 2022 for Kshs.356,500/= dated 6. 3.2024 and April 2024, respectively. The application is supported by a statutory statement of facts and a verifying affidavit dated 18. 6.2024.
2. The application was served upon the respondent on 4. 7.2024. a hearing notice was also served dated 24. 7.2024 and a return of service sworn on 26. 7.2024 was filed by Paul Irungu Mwangi, a process server of this court. The respondent did not oppose the application or attend the hearing date despite service with a hearing notice.
3. At the hearing of the notice of motion, the applicant relied on written submissions dated 28. 7.2024. It was submitted that once the decree and a certificate of the order were served upon the respondent, who failed to honor them, the only option left to the applicant was to seek to enforce settlement by invoking the jurisdiction of this court for an order of mandamus. Reliance was placed on Republic v County Government of Nairobi & others Exparte Kingpost Ltd [2021] eKLR.
4. Mandamus is a form of a command compelling the performance of a public duty which is imposed on a person or body of persons by a statute and where there has been a failure to perform that duty to the detriment of a party who has a legal right to expect the duty to be performed. See Republic v Kenya National Examination Council exparte Gathenji Njoroge & others [1997] eKLR.
5. In Republic vs. National Land Commission exparte Sceneries Ltd (2022) eKLR, the applicant had argued that the respondent though its accounting officer, within the meaning of section 21 of the Government Proceedings Act and Section 20 (4) of the National Land Commission Act, was mandated and had a duty to pay all claims against the government as ordered by the court.
6. The scope and efficacy of an order of mandamus was determined in the Commission on Administrative Justice vs Vision 2030 Delivery Board & others (2019) eKLR, where the court cited Republic vs KNEC exparte Gathenji (supra), that its purpose is to remedy the defects of justice and is issued for the ends of justice to be achieved, where there is a specific legal right even, if there is an alternative remedy yet the mode of redress is not convenient, beneficial and effectual.
7. Before an order of mandamus is issued, there must be proof of compliance with Section 21 of the Government Proceedings Act. See Republic v PS Office of the President exparte Nassir Mwandime [2014] eKLR. In the motion before the court, there is evidence that a decree and a certificate of order were duly served upon the respondent. The same has not been appealed against or set aside. Both gave a specific right to the applicant and a corresponding duty upon the respondent through its accounting officer to pay the decretal sum as specified in the certificate of order. See also First Star Agencies Ltd & another v National Lands Commission [2024] KECA 439 (KLR) 12. 4.2024 (Judgment).
8. The respondent has not given to this court any justification why the certificate of order or decree has not been satisfied. Accordingly, I find there is merit in the notice of motion before the court. An order of mandamus shall therefore issue compelling the secretary National Land Commission to pay the applicant an amount of Kshs.442,060/= as per the decree and Kshs.82,000/= as per the certificate of order, making a total of Kshs.524,060/= plus interest at 14% per annum from 16. 3.2022 till payment. Cost to the applicant.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERUON THIS 25TH DAY OF SEPTEMBER, 2024In presence ofC.A KananuRingera for the exparte applicantHON. C K NZILIJUDGE