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Court of AppealDismissedCourt of Appeal Civil Appeal (Nairobi)· [2018] KECA 632 (KLR)

Njenga v Republic & 3 others (Civil Appeal 269 of 2013) [2018] KECA 632 (KLR)

Court of Appeal of Kenya
4 May 2018
DMD. K. MusingaWilliam OukoW. OukoSKS. Gatembu Kairu
1,877 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a landowner's attempt to use judicial review to undo a property transfer, confirming mandamus only compels unperformed legal duties.

What this practically means

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Executive summary

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The appellant's husband was the registered owner of Land Parcel No. Nyandarua/Ol Kalou/Salient/271, which was sold by public auction and transferred to the 4th respondent pursuant to a consent order recorded in Nakuru PMCC No. 173 of 1988. The husband nevertheless purported to transfer the property to the appellant, obtaining Land Control Board consent for that purpose, but the Land Registrar declined to effect the transfer because the property was already registered in the 4th respondent's name. The appellant then sought judicial review relief, principally an order of mandamus compelling the 2nd and 3rd respondents to transfer the property and issue her a title deed, together with general and exemplary damages and mesne profits. Sitati, J rejected the application, holding that mandamus was unavailable since a title deed had already been issued to the 4th respondent, that the respondents had not failed in any statutory duty, that the appellant came with soiled hands by failing to disclose a previous dismissed suit against the 4th respondent, and that the purported transfer was made in breach of a court order. On appeal, the Court of Appeal (Musinga, Ouko and Gatembu Kairu, JJA) applied Kenya National Examinations Council v Republic ex parte Gathenji and held that mandamus compels only performance of a public duty imposed by law; the 2nd and 3rd respondents had no such duty, issuance of titles being vested in the Land Registrar, who could issue only one title per parcel and had already done so in favour of the 4th respondent. The Court further held the application was an afterthought to challenge a consent order that could only be set aside on the Hirani v Kassam grounds, none of which were alleged, and that damages have no place in judicial review. The appeal was dismissed with costs.

Key legal issues

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01

Availability of mandamus against parties with no statutory duty to issue titles

Holding

The 2nd and 3rd respondents had no role in issuance of certificates of title, a function vested in the Land Registrar under the repealed Registered Land Act; mandamus could not lie against them

Reasoning

The Court read the repealed Registered Land Act (Cap 300) and found that issuance of title deeds was vested exclusively in the Land Registrar under section 32(1), and the 3rd respondent was not mentioned in the Act at all. Since mandamus compels performance of a public duty, and the respondents were under no such duty and were not accused of failing to perform any duty detrimental to the appellant, the appellant chose the wrong parties and the application necessarily failed.

p. 3
02

One title per parcel - mandamus incapable of being granted

Holding

The Land Registrar had already exercised his statutory duty in favour of the 4th respondent, and under section 32(1)(i) could issue only one title deed per parcel

Reasoning

The Court held that even against the correct party, mandamus was unavailable because the public duty claimed had already been performed. Section 32(1)(i) of the repealed Act permitted only one title deed or certificate per parcel, which had been issued to the 4th respondent following the public auction and consent order. A party aggrieved by the Registrar's decision could only appeal to the High Court or seek a case stated under section 149.

p. 3
03

Judicial review as an afterthought to challenge a consent order; clean hands

Holding

The judicial review application was an afterthought to challenge a consent order through the back door, and the appellant's transfer was effected in breach of a subsisting order and with soiled hands from non-disclosure of a previous suit

Reasoning

The appellant's husband had, by consent order of 24th April 1991, agreed to give vacant possession to the 4th respondent, and no grounds for setting aside that consent were alleged. His subsequent transfer to the appellant was expressly aimed at defeating the sale, and was lodged while a prohibitory order was subsisting. The appellant also failed to disclose the prior dismissed suit HCCC No. 112B of 1994, disentitling her of equitable relief.

p. 3

Legal principles established

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  • Mandamus can only direct performance of a public duty imposed by law, where the person bound has failed to perform it to the detriment of a party with a legal right to its performance
  • Mandamus is an inappropriate remedy where the complaint is that a duty has been performed but not according to law; certiorari is the efficacious remedy because it can quash a decision already made
  • A party seeking mandamus in judicial review must show a statutory duty conferred on some person or body which that person or body has failed to perform
  • A consent order can only be set aside on grounds which would justify setting aside a contract; it cannot be varied unless obtained by fraud, collusion, agreement contrary to policy of the court, or without sufficient material facts
  • General and exemplary damages are not available in a judicial review application

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 23(3)
  • Registered Land Act (Cap 300) (repealed)section 32(1); section 32(1)(i); section 149

Cases cited (2)

  • Kenya National Examinations Council V Republic Ex-Parte Geofirey Gathenji Njoroge & 9 Others
    [1997] eKLR
  • Hirani V. Kassam
    [1952] 19 EACA 131
On appeal from
High Court of Kenya
Judicial review motion on notice (mandamus) heard by Sitati, J
Jurisdiction invoked
First appellate jurisdiction over the High Court decision in a judicial review application

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, "Njenga v Republic & 3 others (Civil Appeal 269 of 2013) [2018] KECA 632 (KLR)", Case Analysis (2018). Court of Appeal Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/632/eng@2018-05-04

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