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ELCAllowedMiscellaneous Application No. 22 of 2017· [2017] KEELC 1196 (KLR)

Republic v Land Registrar Kajiado Land Registry & another Ex-parte Applicant Maria Ntinyayian Lieseyo [2017] KEELC 1196 (KLR)

Environment and Land Court
18 October 2017
COChristine Ochieng
1,210 words in judgment
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The bottom line

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Kenya's Environment and Land Court ordered the Kajiado Land Registrar to lift an unfair caution on registered land, using a judicial review remedy called mandamus.

What this practically means

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Executive summary

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The ex parte Applicant, Maria Ntinyayian Lieseyo, moved the Court by notice of motion dated 23 May 2017 under Order 53 rules 1 and 2 of the Civil Procedure Rules, Sections 8 and 9 of the Law Reform Act and Section 73 of the Land Registration Act, seeking an order of mandamus compelling the Land Registrar Kajiado and the Attorney General to remove a caution registered by Solomon Tobiko over parcels KAJIADO/KITENGELA/38015 and 38016. She deponed that she obtained the parcels through a Kajiado Land Disputes Tribunal award in her favour, adopted by the Principal Magistrate's Court in Land Disputes Tribunal Case No. 32 of 2012 with a decree of 24 July 2012; no appeal was lodged, but the cautioner registered a caution in 2014, and the Registrar ignored a demand letter of 10 January 2017. The Respondents were duly served on 22 and 29 June 2017 but neither entered appearance nor filed responses, so the application proceeded unopposed. Leave to institute the judicial review proceedings had been granted on 24 April 2017. Relying on Lord Goddard CJ's statement in R v Dudsheath, ex parte Meredith that mandamus lies where a public duty specially affects an individual's rights and there is no more appropriate remedy, and finding no evidence controverting the claim, the Court issued the mandamus compelling the Respondents to remove and/or lift the caution and awarded the ex parte Applicant the costs of the application.

Key legal issues

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Whether mandamus lies to compel the Land Registrar to lift a caution lodged against registered land

Holding

Yes. In the absence of any contrary evidence controverting the ex parte applicant's claim, mandamus against the public-officer respondents was a necessary remedy to enable her to enjoy the benefits of the suit lands.

Reasoning

The court noted the applicant became registered proprietor via an unappealed tribunal award adopted in PMCC No. 32 of 2012, with a decree issued on 24 July 2012. The cautioner lodged the caution in 2014 without appealing. The Registrar failed to act on a demand letter dated 10 January 2017. The respondents were duly served but did not enter appearance or respond, so the application was unopposed, and no evidence controverted the claim.

p. 3

Legal principles established

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  • Mandamus is neither a writ of course nor a writ of right, but will be granted where the duty is of a public nature and specially affects the rights of an individual, provided there is no more appropriate remedy

Court orders

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  1. 1.An order of MANDAMUS be and is hereby issued against the 1st and 2nd Respondents compelling them to remove and/or lift the caution registered by one SOLOMON TOBIKO in 2014 against land known as Land Reference No. KAJIADO/KITENGELA/38015 and KAJIADO/KITENGELA/38016 respectively
  2. 2.The ex parte applicant will also have the costs of this application

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 53 rules 1 & 2
  • Law Reform ActSections 8 and 9
  • Land Registration ActSection 73(1), (2), (3) & (4)

Cases cited (1)

  • R (Regina) vs. Dudsheath, ex parte, Meredith
    [1950] 2 ALL E.R. 741
Jurisdiction invoked
Order 53 of the Civil Procedure Rules 2010, Sections 8 and 9 of the Law Reform Act (Cap 26) and Section 73(1) & (2) of the Land Registration 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 Land Registrar Kajiado Land Registry & another Ex-parte Applicant Maria Ntinyayian Lieseyo [2017] KEELC 1196 (KLR)", Case Analysis (2017). Miscellaneous Application No. 22 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1196/eng@2017-10-18

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