Republic v District Land Registrar Embu [2017] KEELC 2567 (KLR)

Environment and Land Court of Kenya

12 June 2017

YAY.M. Angima

959 words in judgment

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The bottom line

Kenyan courts can force the Land Registrar to hand over certified land documents under Article 35, even without enabling legislation.

What this practically means

Executive summary

The ex-parte applicant, the registered proprietor of Title No. Gaturi/Nembure/2683, discovered that the parcel had been sub-divided into four parcels, three of which were transferred to third parties. She denied knowledge of, or participation in, those transactions and sought certified copies of the supporting documents - mutation forms, Land Control Board consent letters and application forms, and transfer forms - from the District Land Registrar Embu. Her advocate wrote at least two letters to the Respondent, which went unanswered, prompting a Chamber Summons dated 3rd December 2015 for leave to apply for judicial review orders of mandamus, granted by Justice Boaz Olao on 5th February 2016. The substantive Notice of Motion was unopposed: the Respondent and the Attorney General were served but did not appear or file a response, and the court allowed the applicant to proceed ex-parte. The court held that the Respondent bore a constitutional obligation under Article 35 and statutory obligations under the Land Registration Act 2012 and the Access to Information Act 2016 to supply the information, and that the absence of enabling legislation at the time of filing did not weaken the constitutional right. The Notice of Motion was allowed: the Respondent was ordered to furnish certified copies of the specified documents within 30 days of service, except the application forms for Land Control Board consent, which are ordinarily kept by the Board, from which the applicant may obtain them directly. Costs were awarded to the ex-parte applicant.

Key legal issues

Obligation to provide access to information held by the state

Holding

The Respondent has a constitutional obligation under Article 35 and statutory obligations under the Access to Information Act 2016 and the Land Registration Act 2012 to furnish the information sought

Reasoning

Article 35(1) grants every citizen the right of access to information held by the state. Although the Access to Information Act was enacted after this application was filed, the constitutional right under Article 35 existed independently and needed no enabling legislation. The Land Registration Act also imposes a duty on the Registrar to provide information. Unresponsive service meant no justification was offered.

p. 2

Custody of Land Control Board consent application forms

Holding

The Registrar must supply the consent letters but not the application forms for consent, which are kept by the Land Control Board

Reasoning

The court distinguished between documents held by the Land Registry and those held by the Land Control Board. While the Registrar receives and keeps the consent of the Land Control Board, the application for that consent is ordinarily in the custody of the Board itself, so mandamus could not compel the Registrar to produce it.

p. 2

Legal principles established

The absence of enabling legislation did not render impotent the constitutional right of access to information under Article 35
A Land Registrar bears both a constitutional and statutory obligation to provide information held by the registry, absent legal justification for refusal

Court orders

1.Notice of Motion dated 26th February 2016 allowed
2.Respondent to furnish the ex-parte applicant with certified copies of the documents specified in the application, save the application for consent of the Land Control Board
3.The ex-parte applicant at liberty to obtain the application form for consent from the relevant Land Control Board
4.Respondent to supply certified copies of the documents within 30 days from the date of service of the order
5.Ex-parte applicant to have the costs of the application

Authorities

Legislation

Constitution of Kenya, 2010Article 35(1)
Constitution of Kenya, 2010Article 47
Land Registration ActSection 10
Access to Information Actnull

Jurisdiction invoked: Articles 35 and 47 of the Constitution of Kenya, 2010; judicial review jurisdiction of the Environment and Land Court

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Republic v District Land Registrar Embu [2017] KEELC 2567 (KLR)", Case Analysis (2017). Misc. E.L.C No. 42 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2567/eng@2017-06-12

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