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ELCAllowedPetition dated 22nd May, 2015· [2016] KEELC 585 (KLR)

Samson Kalume Charo & another v Land Registrar Kilifi & 2 others [2016] KEELC 585 (KLR)

Environment and Land Court
16 September 2016
804 words in judgment
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The bottom line

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Land Registrars in Kenya must register land transactions when no active court order blocks them, and courts can force them to act.

What this practically means

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Executive summary

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The Petitioners, administrators ad litem of the estate of the late Charo Mwangirani, the registered proprietor of plot Ngumo Pasta Mazeras/1117, petitioned the court after the 1st and 2nd Respondents refused to register subdivisions of the suit property and issue Title Deeds. They sought orders of mandamus compelling registration of the subdivisions and release of all subdivided plots' title deeds, plus costs. The Land Registrar, Kilifi, explained that his office had been served with court orders from Kilifi Civil Case No. 268 of 2011, which inhibited dealings with the parcel. The 2nd Petitioner countered in a supplementary affidavit that no order subsisted, the earlier orders having lapsed and been discharged. The Attorney General filed no submissions. The court found that the deceased had caused the property to be subdivided by a licensed surveyor before his death on 13th October 2010, and the mutation forms were received by the District Land Registrar on 30th September 2008. Although an inhibition order initially existed, it was vacated on 17th November 2011, a fact the 2nd Respondent admitted. The court held that in the absence of any subsisting court order, the Respondents were under a statutory duty to register the mutation and issue the Title Deeds. The court allowed the Petition, issuing two orders of mandamus compelling registration and release of the Title Deeds to the Petitioners, and ordered the Respondents to pay the costs of the Petition. Judgment delivered at Malindi on 16th September 2016 by O. A. Angote, Judge.

Key legal issues

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01

Whether a lapsed or vacated court order could justify refusal to register the subdivisions

Holding

It could not; once the inhibition order was vacated, the Respondents' statutory duty to register revived

Reasoning

The Land Registrar resisted registration on the basis of orders served on his office from Kilifi Civil Case No. 268 of 2011. However, the court found that the inhibition order was vacated on 17th November 2011, and the Registrar himself admitted no current order barred registration. The petitioners, as administrators ad litem, thus established entitlement to mandamus compelling registration and issuance of Title Deeds in the name of the deceased or his administrators for distribution.

p. 2
02

Whether mandamus lies to compel the Land Registrar to perform the statutory duty of registration

Holding

Yes; the court issued mandamus compelling registration and release of Title Deeds

Reasoning

The deceased had caused the suit property to be subdivided by a licensed surveyor and the mutation forms were received by the District Land Registrar on 30th September 2008 for registration. The Respondents offered no valid reason for refusing registration once the inhibitory order had lapsed. The court held that in the absence of any subsisting court order, the Respondents are under a statutory duty to register the mutation and issue the Title Deeds, justifying the judicial review orders sought.

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Legal principles established

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  • In the absence of a subsisting court order inhibiting dealings with land, the land registry is under a statutory duty to register a lodged mutation and issue Title Deeds.

Court orders

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  1. 1.An order of Judicial Review by way of Mandamus compelling the 1st and 2nd Respondents to register the mutation for the subdivision of parcel of land number Ngumo Pasta Mazerus/1117 and to issue the Title Deeds in the name of the deceased or the Administrators of the Estate of the deceased for distribution
  2. 2.An order of Judicial Review by way of Mandamus compelling the 1st and 2nd Respondents to release all the Title Deeds arising out of the sub-divisions of parcel of land known as Ngumo Pasta Mazeras/1117 to the Petitioners
  3. 3.The Respondents to pay the costs of the Petition
Jurisdiction invoked
Constitutional petition seeking judicial review remedies (mandamus) before the Environment and Land Court

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, "Samson Kalume Charo & another v Land Registrar Kilifi & 2 others [2016] KEELC 585 (KLR)", Case Analysis (2016). Petition dated 22nd May, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/585/eng@2016-09-16

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