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ELCDismissedNot stated in the judgment· [2018] KEELC 1872 (KLR)

Margaret Konah & another v Nandi County Land Registrar & 4 others [2018] KEELC 1872 (KLR)

Environment and Land Court
26 July 2018
AOA. Ombwayo
2,646 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed the Konah petition because the Land Registrar had already complied with the 2011 boundary order.

What this practically means

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Executive summary

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Margaret and Kenneth Konah, administratix and administrator of the estate of Petro Kona Ayodi, petitioned the Nandi County Land Registrar, County Surveyor and the Attorney General over Land Parcel Nandi/Kemeloi/752, bordering parcels 238 and 239. They relied on decrees of the Senior Resident Magistrate's Court at Kapsabet dated 8 March 2011 and 20 April 2011, arising from an Aldai Division Land Disputes Tribunal award, directing the surveyor through the land registrar to determine the original boundaries. They alleged breach of Article 47 fair administrative action and statutory duties under the Land Registration Act, and sought mandamus to fix boundaries, clearance of a blocked public road, damages and costs. The Land Registrar swore that the 2011 order was implemented: a survey conducted on 28.03.2012 established that the parcels' ground measurements did not match the RIM, that parcel 752 had been encroached upon by parcels 238 and 239, and that boundaries were reinstalled and the road obstruction rectified. The interested parties denied any constitutional breach; the 2nd interested party asserted ownership of parcel 239 and attacked the exparte tribunal proceedings. The court framed two issues: whether the petition raised constitutional issues, and whether mandamus lay. It held that although ignoring court orders breaches Article 47, the respondents had in fact complied with the decree, and that uncontroverted evidence proved implementation. Mandamus could not compel the registrar to act in a specific manner or clear bushes and trees, which is not his statutory duty, and no certiorari had been sought to quash any decision. The petition was dismissed with costs.

Key legal issues

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01

Whether the petition raises a constitutional issue under Article 47

Holding

Yes, in principle failure by administrative officers to obey court orders breaches Article 47, but on the facts the respondents complied with the order and the replying affidavit was not controverted

Reasoning

The court held that ignoring court orders by administrative officers is unlawful and breaches Article 47(1), which entitles every person to expeditious, efficient, lawful, reasonable and procedurally fair administrative action. However, the Land Registrar swore that the 2011 order was implemented by a survey conducted on 28.03.2012 in the parties' presence, with boundaries reinstalled and the road obstruction rectified. That evidence was uncontroverted, so no constitutional violation was established.

p. 4
02

Whether an order of mandamus can issue against the respondents

Holding

No; mandamus cannot compel performance in a specific manner, the registrar's decision was not shown to be illegal, procedurally improper or irrational, and no application for certiorari was made

Reasoning

Applying the KNExC ex-parte Gathenji principles, mandamus compels performance of a statutory public duty but cannot dictate the mode of performance. The petitioners effectively sought to have the registrar implement the decree in a specific manner and to clear the blocked road, which is not the registrar's statutory duty. Further, without an order of certiorari, the court cannot quash the registrar's decision, and no jurisdictional error, procedural impropriety or irrationality was demonstrated.

p. 4

Legal principles established

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  • Disobedience of court orders by administrative officers is a breach of Article 47 of the Constitution as it amounts to a clog on the justice system and a breach of fair administrative action
  • Mandamus compels performance of a public duty imposed by statute but cannot command how the duty is to be carried out in a specific manner

Court orders

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  1. 1.The petition is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 40, 47, 62
  • Registered Land Act Cap 300 (repealed)Sections 16 to 23
  • Land Registration Act, 2012Sections 18 to 23; Section 28
  • Judicature ActSection 5

Cases cited (1)

  • Kenya National Examination Council v Republic Ex-parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR
Jurisdiction invoked
Articles 22, 23, 40 and 62 of the Constitution of Kenya 2010 invoked by petitioners; Article 47 fair administrative action

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, "Margaret Konah & another v Nandi County Land Registrar & 4 others [2018] KEELC 1872 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1872/eng@2018-07-26

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