Republic v Commissioner of Lands, Lands Registrar Kilifi, Attorney General, Wilson Gachanja, Alfred Cherwon & James Raymond Njenga ex-parte Rose Kavita Mwivithi, Julius Mwivithi Nzukuh & Timothy Muchina Chege [2017] KEHC 4762 (KLR)

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