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ELCStruck OutNotice of Motion dated 26th February 2016 (Judicial Review)· [2017] KEELC 3693 (KLR)

Kazungu Mwatete & another v Robert Mureithi Githinji & another [2017] KEELC 3693 (KLR)

High Court of Kenya
3 February 2017
OAO. A. Angote
532 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court struck out a bid to force the Kilifi Land Registrar to register applicants as landowners because the existing titles had not first been cancelled and the registered owner was not joined.

What this practically means

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Executive summary

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The Ex-Parte Applicants moved the Court by Notice of Motion dated 26th February 2016 seeking an order of mandamus to compel the Land Registrar, Kilifi, to register them as owners of KILIFI/JIMBA/42, previously subdivided into KILIFI/JIMBA 472, 473 and 474. They deponed that they owned and occupied the land; that during adjudication the land was rightfully registered in their names although titles issued in the name of Robert Mureithi Githinji; and that the Malindi Land Disputes Tribunal found in their favour and directed cancellation of the title and nullification of the subdivision, which findings the Magistrates' Court adopted, but the Registrar refused to comply with the order. The Respondent opposed on grounds that the Tribunal lacked jurisdiction over land ownership, the registered owner was not enjoined, and there was no proof of refusal to comply. The court noted that in 2006 the Tribunal found the transfer of Kilifi/Jimba 42 illegal and directed reversion to the Applicants, but the Tribunal itself directed the claimants to move the High Court for cancellation of titles arising from the objector's action. The court held that since the High Court had not cancelled the impugned title deeds and the registered proprietor was not a party to the proceedings, the suit was incompetent. The Notice of Motion was struck out with no order as to costs.

Key legal issues

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01

Whether mandamus could issue to compel registration of the Applicants as owners of the suit property

Holding

The application was incompetent because the impugned titles had not been cancelled by the High Court and the registered proprietor was not a party to the proceedings.

Reasoning

The Malindi Land Disputes Tribunal in 2006 found the transfer of Kilifi/Jimba 42 illegal and directed the claimants to move the High Court for cancellation of titles. The Tribunal recognised only the High Court could cancel the objector's title. Since that cancellation had not occurred and the registered proprietor, Robert Mureithi Githinji, was not enjoined, the mandamus application could not succeed and was struck out.

p. 2

Legal principles established

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  • A party seeking registration of land following a Land Disputes Tribunal decision must first obtain cancellation of the impugned titles in the High Court and enjoin the registered proprietor.

Court orders

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  1. 1.Notice of Motion dated 26th February 2016 struck out with no order as to costs
Jurisdiction invoked
Judicial review jurisdiction of the High Court (order of mandamus sought against the Land Registrar)

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, "Kazungu Mwatete & another v Robert Mureithi Githinji & another [2017] KEELC 3693 (KLR)", Case Analysis (2017). Notice of Motion dated 26th February 2016 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3693/eng@2017-02-03

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