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ELCDismissedEx Parte Notice of Motion dated 20th April 2017 (Mombasa Environment and Land Court)· [2017] KEELC 1015 (KLR)

In re Francis Waiganjo Kimanga & another [2017] KEELC 1015 (KLR)

Environment and Land Court
8 November 2017
1,863 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The applicants, Francis Waiganjo Kimanga and Lucy Wanjiru Kimanga, moved the Environment and Land Court at Mombasa by ex parte Notice of Motion dated 20th April 2017 seeking orders that the Chief Land Registrar advertise the loss of Title Deed CR 1872, Plot No.289 Section V/MN, open a new file, and issue a new title in their names in terms of Entry No.27 of the original title, contending they are the registered owners of Subdivision No.1872 (Original No.289/36), CR.31535, that the title was lost in their house and reported at Nyali Police Station, and that the Registrar admitted losing the mother file. The court, though the application was expressed as ex parte, directed service on the Attorney General, who neither responded nor attended. C. Yano J held that lost or destroyed certificates are governed by Section 33 of the Land Registration Act, under which the registered proprietor applies to the Registrar for a duplicate, supported by statutory declarations and evidence of loss, with publication in the Gazette and two local newspapers; the Registrar exercises a discretion. There was no evidence the Registrar considered the matter or that statutory declarations were submitted, and the Registrar was not a party to the ex parte application, making the orders sought impossible to grant. The court dismissed the motion with no order as to costs, advising the applicants to pursue the appropriate legal channels.

Key legal issues

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01

Statutory procedure for replacement of lost certificates of title

Holding

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

Reasoning

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.

p. 3
02

Orders against a non-party in an ex parte application

Holding

Orders directed at the Chief Land Registrar, who is not a party to the ex parte application, cannot properly be granted

Reasoning

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.

p. 3
03

Whether the court could intervene absent refusal by the Registrar

Holding

No, the court was not told the Registrar had declined to perform his administrative duties, so judicial intervention was unwarranted

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 20th April 2017 is dismissed
  2. 2.No order as to costs since the application has no respondent

Authorities

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Legislation

  • Environment and Land Court ActSection 13
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(c) and (e)
  • Civil Procedure RulesOrder 51
  • Land Registration ActSection 33
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

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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, "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.