Republic v Commissioner of Lands, Lands Registrar, Kilifi, Attorney General, Wilson Gachanja, Alfred Cherwon, James Raymond Njenga & Holburn Properties Ltd exparte Mariam Mueni Musembi & Timothy Muchina Chege [2017] KEHC 4870 (KLR)

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