Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedJudicial Review Application No. 130 of 2017· [2018] KEELC 1305 (KLR)

Republic v Land Registrar, Kajiado North District & 3 others [2018] KEELC 1305 (KLR)

Environment and Land Court
16 October 2018
COChristine Ochieng
3,263 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Kenyan court quashed a land registrar's boundary decision because he ignored an expert surveyor's report, forcing a fresh, fair determination.

What this practically means

#

Executive summary

#
The ex parte Applicant, proprietor of Ngong/Ngong/31272, sought certiorari to quash a decision of the Land Registrar, Kajiado North District directing the parties to adopt boundaries as marked on the ground, and mandamus compelling the District Surveyor to fix the boundaries of the adjoining parcels Ngong/Ngong/31271 and 31272 in accordance with the mutation form registered on 10th December 2003. He alleged encroachment of approximately two metres by the Interested Party, and that the Registrar's decision of August 2017 contradicted his own site visit report of 17th May 2017 and ignored the District Surveyor's report confirming the shortfall. The Interested Party denied encroachment, asserted he built within his boundary, counter-alleged trespass and felling of trees, and challenged the Court's jurisdiction. The Court framed four issues: jurisdiction, whether the Registrar's proceedings were biased or materially flawed, sufficiency of the Applicant's interest, and costs. On jurisdiction, it held the ELC is empowered to grant prerogative orders under section 13(7) of the ELC Act. On the merits, applying the CC SU standards of illegality, irrationality and procedural impropriety and Article 47 of the Constitution, the Court found the Registrar failed to consider the expert report of the District Surveyor, rendering the decision unreasonable and in breach of natural justice. The Notice of Motion was allowed: the impugned decision was quashed, the Registrar was directed to consider the District Surveyor's report and file a fresh report within 60 days, and costs were awarded to the Applicant.

Key legal issues

#
01

Jurisdiction of the ELC to entertain judicial review over a land boundary dispute

Holding

The ELC has jurisdiction; prerogative orders fall within its power to grant relief under section 13(7)(b).

Reasoning

Section 13(1) of the ELC Act confers original and appellate jurisdiction over land disputes under Article 162(2)(b), and section 13(2)(c) & (d) covers land administration and instruments granting interests in land. Section 13(7)(b) empowers the Court to make prerogative orders. Since certiorari and mandamus are prerogative orders, judicial review falls within the Court's ambit.

p. 3
02

Whether the Land Registrar's decision was procedurally fair and reasonable

Holding

The decision was unlawful; the Registrar failed to consider the District Surveyor's report, amounting to unreasonableness and a breach of natural justice and Article 47.

Reasoning

Judicial review concerns the decision-making process, not merits. Applying the Council of Civil Service Unions standards of illegality, irrationality and procedural impropriety, the court found the Registrar disregarded the expert report of the District Surveyor confirming a 2-metre shortfall on the applicant's parcel and instead directed parties to adopt ground boundaries. Failure to consider relevant material rendered the decision unreasonable and procedurally unfair contrary to Article 47.

p. 4

Legal principles established

#
  • Failure by a decision-maker to consider all materials presented before arriving at a finding amounts to unreasonableness and offends the rules of natural justice.
  • Where a body takes account of irrelevant considerations, any decision arrived at becomes unlawful.

Court orders

#
  1. 1.The decision/determination of the Land Registrar, Kajiado North District dated 24th August, 2017 or thereabout directing that parties should adopt boundaries as marked on the ground be and is hereby quashed.
  2. 2.The District Land Registrar Kajiado North District be and is hereby directed to consider the report of the District Surveyor dated the 17th May, 2017 and submit a fresh report to Court, in respect of the boundary dispute herein, within the next 60 days from the date.
  3. 3.The costs are awarded to the Applicant.
Jurisdiction invoked
Sections 8 & 9 of the Law Reform Act; Order 53 of the Civil Procedure Rules 2010; Sections 13(1), 13(2)(c) & (d) and 13(7)(b) of the Environment and Land Court Act; Article 162(2)(b) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Land Registrar, Kajiado North District & 3 others [2018] KEELC 1305 (KLR)", Case Analysis (2018). Judicial Review Application No. 130 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1305/eng@2018-10-16

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