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ELCPartially AllowedELC 445 of 2014 (Judicial Review Notice of Motion dated 3rd March 2025)· [2025] KEELC 4313 (KLR)

Republic v National Land Commission; Five Star Agencies Limited (Exparte Applicant) (Environment & Land Case 445 of 2014) [2025] KEELC 4313 (KLR)

Environment and Land Court
9 June 2025
6,302 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court ordered the National Land Commission's CEO to pay Five Star Agencies over Kshs. 909 million owed since a 2014 land compensation judgment.

What this practically means

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Executive summary

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The Ex Parte Applicant, Five Star Agencies Limited, obtained judgment on 24th November 2014 against the National Land Commission for compulsory acquisition of its land L.R. 209/9727 (IR 37790), the award having been raised to Kshs. 413,192,500 with interest until payment in full. Execution against the Commission being barred by Section 21(4) of the Government Proceedings Act - a position upheld through the Court of Appeal (Five Star Agencies, [2024] KECA 439) and the Supreme Court ([2024] KESC 62) - the Applicant sought an order of mandamus directing the Commission's Chairman and Chief Executive Officer to pay Kshs. 909,023,500 with interest, and in default to be cited for contempt. The Respondent opposed, contending the application was fatally defective for being filed in the main suit rather than a miscellaneous application, and that it is merely a conduit awaiting funds from KENHA. The court held the application properly before it, the Applicant having obtained leave under Order 53, and applied Article 159(2)(d) to overlook procedural irregularities. It found the statutory duty to pay under Section 21(3) of the Government Proceedings Act triggered by service of the Certificate of Order, which was proved, and rejected the Respondent's conduit argument. Mandamus issued against the Chief Executive Officer only, being the accounting officer under Section 20(4) of the National Land Commission Act; the prayer against the Chairman was refused. The contempt prayer was held premature. The application was partially allowed with costs to the Applicant.

Key legal issues

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01

Whether the application, filed in the main suit rather than a miscellaneous application, was fatally defective

Holding

The application was properly before the court; the Applicant complied with Order 53 by obtaining leave, and the court was entitled to overlook procedural defects under Article 159(2)(d)

Reasoning

The court held that judicial review proceedings require leave, which the Applicant duly sought and obtained through its Chamber Summons dated 13th February 2025. Though Rule 11 of the Fair Administrative Action Rules prescribes an Originating Motion, Section 13(5)(b) of the Environment and Land Court Act empowers the court to grant any just relief, including prerogative orders. Guided by the Supreme Court's guidance in Shabbir Ali Jusab, the court found no prejudice to the Respondent and prioritized substantive justice given the judgment was over ten years old.

p. 8
02

Whether mandamus should issue against the Chairman and Chief Executive Officer of the National Land Commission

Holding

Mandamus issued against the Chief Executive Officer only, as accounting officer under Section 20(4) of the National Land Commission Act; the claim against the Chairman failed

Reasoning

The court found no dispute that the judgment of 24th November 2014 remains unsatisfied and unvaried. The Applicant, barred from executing against a government entity under Section 21(4) of the Government Proceedings Act, had extracted and personally served a Certificate of Order upon the Respondent's officials, satisfying the condition precedent under Section 21(1) and (2). The Respondent's admission of non-payment, attributable to KENHA's failure to remit funds, could not forestall mandamus, as the duty to pay is not conditioned on receipt of funds from the acquiring entity.

p. 12

Legal principles established

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  • A monetary decree against the Government can only be enforced by way of an order of mandamus compelling the accounting officer to pay, execution being barred under Section 21(4) of the Government Proceedings Act
  • Section 21(3) of the Government Proceedings Act imposes a statutory duty on the accounting officer to pay upon service of the Certificate of Order, and payment is not conditioned on budgetary allocation
  • The Chief Executive Officer of the National Land Commission is the Commission's accounting officer against whom mandamus should issue

Court orders

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  1. 1.An order of Mandamus issued directed to the Chief Executive Officer, National Land Commission, as the accounting officer, compelling her to pay the Ex Parte Applicant the sum of Kshs. 909,023,500/- together with further interest from 3rd December 2024 until payment in full
  2. 2.Costs of the application to be borne by the Respondent

Authorities

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Legislation

  • Law Reform ActSections 8 and 9
  • Civil Procedure RulesOrder 53; Order 29 Rule 3
  • Constitution of KenyaArticles 40(3), 48, 159(2)(d), 163(4)(a)
  • Land ActSections 111, 111(1A), 115, 115(2), 117
  • National Land Commission ActSections 20(3), 20(4)
  • Government Proceedings ActSections 21(1), (2), (3), (4)
  • Civil Procedure ActSection 99
  • Fair Administrative Actions ActSections 7 and 8
  • Fair Administrative Action Rules 2024Rule 11
  • Environment and Land Court ActSection 13(5)(b)
  • Legal Notice No. 283 of 2017

Cases cited (23)

  • In the Matter of an Application by Salt Manufacturers for Orders of Mandamus
    [2013] KEHC 6775 (KLR)
  • Muciimi Mbaka & Co. Advocates vs Town Clerk, City Council of Nairobi
    [2012] eKLR
  • Republic vs Principal Secretary; Ministry of Agriculture, Livestock and Fisheries & Another; Nkari (Exparte Applicant)
    [2025] KEHC 3960 (KLR)
  • Republic vs Attorney General ex parte James Alfred Koroso
    JR 44/2012
  • Five Star Agencies Limited vs National Land Commission & 2 Others
    [2024] KECA 439 (KLR)
  • Republic vs The National Land Commission; M'inoti (Exparte Applicant)
    [2024] KEELC 6355 (KLR)
  • Republic vs National Land Commission Ex Parte Sceneries Limited
    [2022] KEELC 928 (KLR)
  • R vs The Chairman Amagoro Land Disputes Tribunal & Jacinta Papa (Interested Party) ex parte Paul Mafwabi Wanyama
  • Chabari vs District Land and Adjudication Officer Meru South Maara District & 3 Others; Karimi (Interested Party)
    [2024] KEELC 1128 (KLR)
  • Republic vs Cabinet Secretary, Ministry of Land & Physical Planning & 3 Others; Mugo (exparte Applicant); Kamumo & Another (Interested Parties)
    [2023] KEELC 19067 (KLR)
  • Ransa Company Ltd vs Manca Francesco & 2 Others
    [2015] KECA 139 (KLR)
  • R vs The Principal Secretary, Ministry of Defence & Another ex parte David Gitau Njau & 9 Others
  • R vs Chief Executive Officer, the Independent Electoral and Boundaries Commission & Another, Ex parte M'Anyiri Hannington Gitaari
  • Republic vs The County Secretary, Nairobi City County & Another Ex parte Prof. Tom Ojienda & Associates
  • Mwau vs Principal Immigration Officer
    Misc. Civil Case No. 299 of 1983
  • Republic vs The Commissioner of Lands & Another Ex parte Kithinji Murugu M'agere
  • Shabbir Ali Jusab vs Anaar Osman Gamrai & Attorney General
    [2013] KESC 9 (KLR)
  • Kenya Power & Lighting Company & Chonge
    [2023] KEELC 17950 (KLR)
  • Wachira Nderitu & Co. Advocates vs The Town Clerk, City Council of Nairobi
    Miscellaneous Application No. 354 of 2012
  • Republic vs Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza
    [2012] KEHC 1643 (KLR)
  • Republic vs Attorney General & another Exparte James Alfred Koroso
    [2013] eKLR
  • Raila Odinga vs IEBC and 4 others
    Petition (No. 5 of 2013)
  • Kenya National Highways Authority vs Five Star Agencies Limited & Another
    [2024] KESC 62 (KLR)
Jurisdiction invoked
Law Reform Act and Order 53 of the Civil Procedure Rules; Section 13(5)(b) of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v National Land Commission; Five Star Agencies Limited (Exparte Applicant) (Environment & Land Case 445 of 2014) [2025] KEELC 4313 (KLR)", Case Analysis (2025). ELC 445 of 2014 (Judicial Review Notice of Motion dated 3rd March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4313/eng@2025-06-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.