REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
JUDICIAL REVIEW APPLICATION NO. E039 OF 2024
IN THE MATTER OF: AN APPLICATION FOR ORDERS IN THE NATURE OF JUDICIAL REVIEW ORDERS OF MANDAMUS
AND
IN THE MATTER OF: ORDER 53 OF THE CIVIL PROCEDURE RULES CAP 21
AND
IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015
AND
IN THE MATTER OF: THE LAW REFORM ACT SECTIONS 8 &9 CAP 26
AND
IN THE MATTER OF: ARTICLE 159(2) (d) CONSTITUTION OF KENYA 2010
BETWEEN
REPUBLIC.............................................................................................. APPLICANT
VERSUS
THE NATIONAL LANDS COMMISSION.........................................1ST RESPONDENT
THE CHAIRPERSON NATIONAL LANDS COMMISSION................2ND RESPONDENT
THE CHIEF EXECUTIVE OFFICER NATIONAL
LANDS COMMISSION..................................................................3RD RESPONDENT
AND
NGUKU PRODUCT TWENTY TEN LIMITED.............................EX PARTE APPLICANT
RULING
Introduction
- The proceedings herein were commenced vide the application for leave brought before this court under certificate of urgency dated 19/9/2024 in suit HCMISCJR No. E037 of 2024. The Ex-parte Applicant (“the Applicant”) sought leave to institute these proceedings for an order of Mandamus as against the Respondents. The sought leave was granted on the even date and the Applicant thereafter filed the substantive motion dated 25/9/24. Suit HCMISCJR E037 of 2024 has since been marked as spent and the file closed.
- The ruling is on the substantive motion which seeks for orders that:
- This honourable court be pleased to grant the Ex parte Applicant an order of Mandamus against the Respondents compelling them to forthwith pay the decretal amount of Kshs.38,994,068.21/= with accrued interest from the date of the judgment in Land Acquisition Tribunal Case No. TRLAA E003 of 2024, until payment in full.
- Costs and incidentals in this matter be awarded to the Ex-parte Applicant.
- The Respondents have not entered appearance or filed any response to the motion despite service as evidenced by the affidavit of service sworn on 14/10/2024 by Justina Muthee. The motion thus stands unopposed. Albeit the fact that the application is unopposed, this court will nevertheless determine the merits of the application.
- The substantive motion is supported by a sworn Affidavit of one Joseph Nyamai Mwangangi a director/shareholder of the Applicant who has authority and capacity to swear as such through a company resolution annexed to the affidavit as “JNM-1”.
Background
- The Applicant was the registered owner of the property known as ATHI RIVER/ATHI RIVER BLOCK 1/31. The property was compulsorily acquired by the 1st Respondent for the purpose of construction of the second carriageway of Athi-River Machakos turnoff road project. This was done through Gazette Notices No. 9536 of 29th September 2017 and 11424 of 17th November 2017. Pursuant to the compulsory acquisition of the Applicant's property, the said second carriageway project was undertaken to completion. Despite this and numerous pleas, the Applicant is yet to be fully compensated for the acquired land.
- Aggrieved by the actions of the 1st Respondent, the Applicant filed suit as against the 1st Respondent before the Land Acquisition Tribunal being (TRLAA) No. E003 of 2024 seeking orders inter-alia of determination of the rightful value due to the Applicant as compensation and orders to the effect that the 1st Respondent does compensate the Applicant fully.
- The matter before the Land Acquisition Tribunal proceeded to completion with the participation of all the parties and judgment was delivered on 29/4/2024 in favour of the Applicant as against the 1st Respondent herein for the sum of Kshs.52,785,000. The Tribunal in its judgment took note of the fact that the 1st Respondent had remitted a sum of Kshs.15,000,000 as a deposit and that a balance of Kshs.37,785,000 was payable to the Applicant herein with interest computed until payment in full. The Applicant has produced a copy of the said judgment marked as “JNM-2”.
- Despite the 1st Respondent failing to attend court on 29/4/2024 when the judgment was delivered by the honourable Tribunal, a copy of the said judgment was delivered vide email to the parties. The Applicant annexed a copy of the forwarding e-mail bearing the addresses of the 1st Respondent and the Applicant's advocates on record as annexure “JNM-3. The Applicant through its advocates on record provided the bank account details for remission of the awarded sum to the Respondents vide a letter dated 9/5/2024. The said letter did not elicit any response it is marked as “JNM-4”.
- The Applicant's advocates extracted a decree which is marked as "JNM-5” which was served upon the Respondents as evidenced by the forwarding letter marked as "JNM-6a" and a copy of the decree with the 1st Respondent's receiving stamp marked as "JNM-6b". Despite the exerted efforts by the Applicant to attain the fruits of its judgment, the Applicant has been unsuccessful. The Respondents have ignored and/or refused to make good the outstanding decretal amount of Kshs.38,994,068.24 which amount is still accruing interest.
Analysis and determination
- This court has considered the application, the supporting affidavit and submissions on the motion as well as the cited authorities. The single issue for determination is whether the Applicant is entitled to the orders of Judicial Review in the nature of Mandamus sought in the application.
- The orders of Mandamus have been defined in HALSBURY'S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 thus;
"The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."
- The conditions for granting an order of mandamus have since been established in jurisprudence. The case of Republic vs. Independent Electoral and Boundaries Commission Ex parte Nyabaro Onditi [2021] eKLR quoted with approval the decision by Mativo J. in Republic vs Principal Secretary, Ministry of Internal Security & Another ex parte Schon Noorani & Another [2018] eKLR where the court determined as follows:
"Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. vs. Canada (Attorney General), [23] and, was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration).[24] The factors that must be present for the writ to issue are:-
(i) There must be a public legal duty to act;
(ii) The duty must be owed to the Applicants;
(iii) There must be a clear right to the performance of that duty, meaning that:
a. The Applicants have satisfied all conditions precedent; and
b. There must have been:
i. A prior demand for performance;
ii. A reasonable time to comply with the demand, unless there was outright refusal; and
iii. An express refusal, or an implied refusal through unreasonable delay;
iv. No other adequate remedy is available to the Applicants;
v. The Order sought must be of some practical value or effect;
vi. There is no equitable bar to the relief sought;
vii. On a balance of convenience, mandamus should lie"
10. The issues therefore that require to be determined are firstly, whether the Respondent is under a public duty and obligation to satisfy the orders issued in favour of the ex parte Applicant, and secondly, if so, whether the ex parte Applicant is entitled to the relief sought.
- In this court’s opinion, the proceedings herein touch on the paramount right to property that is well entrenched in the Constitution of Kenya, 2010. The deprivation of the said right has been strictly curtailed and it can only be done under strict parameters. Article 40(3) provides thus;
(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation-
(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or
(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that-
(i) requires prompt payment in full, of just compensation to the person; and
(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.
- It is upon reliance of the above quoted Constitutional provision that this court finds that the Applicant is well entitled to the orders sought herein. The Applicant was deprived of his property 7 years ago and despite its best efforts, it has been unable to attain prompt, just and full compensation for its property as is provided in the Constitution of Kenya, 2010.
- In this case, the Applicant has moved this Court to compel the satisfaction of a judgment already decreed in its favour by a competent Court of law. The applicant has demonstrated by way of evidence compliance with the provisions of Section 21 of the Government Proceedings Act. The Respondents have not given any reason as to why the decree has not been fulfilled almost seven years later.
- A cursory look at the application and affidavit filed, and specifically, the letter dated 9/5/24 to the Respondents which was produced and marked as "JNM-4”. The Applicant made a demand of the decretal sum as per the judgment delivered on 29/4/2024. The Applicant gave the bank details for remission of the amount owed but no response has been received from the Respondents.
- The Court in the case of Republic v The Attorney General & Another ex parte James Alfred Koroso (2013) eKLR held as follows;
“…in the present case the ex parte applicant has no other option of realising the fruits of his judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that he has been awarded is realised. Unless something is done, he will forever be left baby-sitting his barren decree. This state of affairs cannot be allowed to prevail under our current Constitutional dispensation in light of the provisions of Article 48 of the Constitution which enjoins the State to ensure access to justice for all persons. Access to justice cannot be said to have been ensured when persons in whose favour judgements have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgement due to roadblocks placed on their paths by actions or inactions of public officers.”
18. In the premises, I am satisfied that the Ex Parte Applicant has made a case for the grant of an order of Mandamus and I hereby grant the same in terms of prayer (1) of the Notice of Motion dated 25th September 2024. The Ex parte Applicant will also have costs of this application.
It is so ordered.
RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 11TH FEBRUARY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 11TH FEBRUARY 2025
In the presence of :
Ms Thiongo.................... for Exparte Applicant
N/A ......... for Respondent
Milly Grace..... Court Assistant