Republic of Kenya v Charles Gichango Wanjohi & 3 others Ex Parte Andrew Kariuki Mutahi [2017] KEELC 3209 (KLR)
The bottom line
#Kenya's High Court confirmed a Land Registrar cannot reopen a boundary dispute that was already decided, and quashed his decision for acting without jurisdiction.
What this practically means
#Executive summary
#Key legal issues
#Efficacy of an order of prohibition against a completed decision
Prohibition was refused because the decision sought to be restrained was already made before the application was filed
Relying on the Kenya National Examination Council case, the court held that prohibition is directed at preventing a tribunal from continuing proceedings in excess of jurisdiction; it is powerless against a decision already made, for which certiorari is the appropriate remedy. Since the Registrar's report was made on 9th February 2016, before the motion of 1st April 2016, prohibition could not lie.
Jurisdiction of the Land Registrar over an already-determined boundary dispute
The 2nd respondent exceeded his mandate by arbitrating a dispute that had previously been adjudicated and not appealed or reviewed
Under Section 86 of the Land Registration Act, 2012, the recourse of a party aggrieved by a boundary determination is an application for review to a court of competent jurisdiction. None of the parties appealed the 2003 decision and the 1st respondent's review application was dismissed, so the Registrar acted without jurisdiction in reviving and re-determining the dispute, contrary also to the procedure in Section 19.
Whether the applicant merited certiorari despite instituting proceedings on speculation
Certiorari issued to quash the Registrar's decision, which was made without jurisdiction and in violation of statutory procedure
Although the claim was instituted pre-emptively on the basis of apprehension, the court could not ignore that the impugned decision was made without jurisdiction. Following the Gathenji Njoroge principles, certiorari is the proper remedy to quash a decision made without or in excess of jurisdiction, and the motion was allowed in terms of prayers (c) and (d).
Legal principles established
#- An order of prohibition cannot issue to restrain a decision that has already been made; it can only prevent the making of a decision
- Only certiorari can quash a decision already made, and it will issue where the decision was made without or in excess of jurisdiction or in breach of natural justice
- A Land Registrar who re-determines a boundary dispute that had already been adjudicated exceeds his mandate under the Land Registration Act
Court orders
#- 1.An order of certiorari to remove to the court and quash any action, award, decision or any direction by the Land Registrar regarding the boundary status of Githi/Muthambi/988/989/1683 and 1682 (prayers (c) and (d) of the motion dated 1st April, 2016 allowed)
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (leave granted on 16th February, 2016 to institute judicial review proceedings); orders sought under sections 8 and 9 of the Law Reform Act and order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic of Kenya v Charles Gichango Wanjohi & 3 others Ex Parte Andrew Kariuki Mutahi [2017] KEELC 3209 (KLR)", Case Analysis (2017). Judicial Review Motion dated 1st April, 2016 (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3209/eng@2017-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.