In re Francis Waiganjo Kimanga & another [2017] KEELC 1015 (KLR)
The bottom line
#Kenya's replacement of a lost land title starts with the Land Registrar under Section 33 of the Land Registration Act, not with a court order.
What this practically means
#Executive summary
#Key legal issues
#Statutory procedure for replacement of lost certificates of title
The Registrar exercises a discretion to issue a duplicate certificate only after being satisfied with evidence of loss and upon statutory declarations by the registered proprietors, followed by publication
Section 33 of the Land Registration Act sets out the procedure: the registered proprietor applies for a duplicate, a statutory declaration is required from all registered proprietors, and the Registrar may issue a duplicate after being satisfied with the evidence and publication in the Gazette and two local newspapers. In issuing the duplicate the Registrar exercises a discretion and must be supplied with all relevant material.
Orders against a non-party in an ex parte application
Orders directed at the Chief Land Registrar, who is not a party to the ex parte application, cannot properly be granted
The orders sought were directed at the Chief Land Registrar who was not listed as a party. Granting them without the Registrar's input would be futile and impossible to implement, as it would be directed at a third party who may not have been given the required material. The matter required administrative action by the Registrar under Section 33 of the Land Registration Act.
Whether the court could intervene absent refusal by the Registrar
No, the court was not told the Registrar had declined to perform his administrative duties, so judicial intervention was unwarranted
The applicants produced no evidence that the Registrar considered the matter or declined to act. The Registrar was alleged to have admitted loss of the mother file, but there was no evidence from the Registrar of such admission, nor that statutory declarations were made. The proper course was for the applicants to invoke the administrative process under Section 33 before seeking court intervention.
Legal principles established
#- It is only the registered proprietor of a lost or destroyed certificate who may apply to the Registrar for a duplicate, following the process in Section 33 of the Land Registration Act
- A party must approach the court through the correct legal procedure to warrant the issuance of orders
Court orders
#- 1.The Notice of Motion dated 20th April 2017 is dismissed
- 2.No order as to costs since the application has no respondent
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act; Sections 1A, 1B, 3, 3A, 63(c) and (e) of the Civil Procedure Act; Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Francis Waiganjo Kimanga & another [2017] KEELC 1015 (KLR)", Case Analysis (2017). Ex Parte Notice of Motion dated 20th April 2017 (Mombasa Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1015/eng@2017-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.