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ELCDismissedJR Miscellaneous Application No. 82 of 2017 (formerly Machakos JR Misc. Application No. 242 of 2010)· [2018] KEELC 2069 (KLR)

Republic v Land Registrar, Kajiado & another Ex Parte Joseph Ndegwa Kamau & 3 others [2018] KEELC 2069 (KLR)

Environment and Land Court
17 July 2018
3,295 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Joseph Ndegwa Kamau, ex parte applicant, sought judicial review orders by Notice of Motion dated 17th November 2010 under sections 8 and 9 of the Law Reform Act: certiorari to quash the register entries and title deeds of KAJIADO/KISAJU/4157 and 4158 (registered to Raphael Lerionka Kapai and Magdalene Wairimu Lerionka) and mandamus compelling the Land Registrar to revert those registers to the estate of the late Mosomba Ene Keton Koponi. He claimed to be a creditor of the estate for Kshs. 933,000/= and alleged that the deceased's sons, the interested parties, procured subdivision, mutation and transfers before confirmation of the grant of letters of administration, contrary to the Law of Succession Act, and that the Registrar had sanitised this illegality. The respondents, by grounds of opposition, argued the application was evidentiary, raised fraud requiring viva voce evidence, and that the court lacked jurisdiction given the Environment and Land Court's competence. Christine Ochieng J applied the CCSU tripartite grounds of judicial review and the Gathenji parameters on mandamus. She held that the applicant knew from the Sale Agreement's special conditions that the vendors lacked a grant, so he could not blame the Registrar on frustration of the contract; the fraud allegations required oral evidence unsuited to judicial review; the court lacked jurisdiction to reverse succession-cause proceedings; and mandamus cannot undo acts already done. The Notice of Motion was dismissed with costs to the respondents.

Key legal issues

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01

Whether the ex parte applicant demonstrated sufficient interest and entitlement to judicial review orders against the Land Registrar

Holding

The application was unmerited; the applicant knowingly contracted with vendors lacking letters of administration, fraud claims require oral evidence, and the court lacks jurisdiction to reverse succession-cause proceedings

Reasoning

The court applied the CSRUM standards of judicial review, finding the applicant was aware from the Sale Agreement's special conditions that the vendors had no grant. The fraud allegations could not be resolved without viva voce evidence. The applicant had adequate alternative remedies under the Law of Succession Act and a civil claim for breach of contract, and any challenge to registration tied to a succession cause must be pursued within that cause at the High Court.

p. 4
02

Whether mandamus could issue to compel reversion of the registers to the deceased

Holding

No - mandamus does not lie where the complaint is that a duty was wrongfully performed and cannot quash what has already been done

Reasoning

Following Republic v Kenya National Examinations Council ex parte Gathenji, the court held mandamus commands performance of a statutory public duty not yet performed; where the complaint is wrongful performance, the proper remedy is certiorari, which itself only issues for lack/excess of jurisdiction or breach of natural justice.

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Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision, on the grounds of illegality, irrationality and procedural impropriety
  • Mandamus compels performance of a public duty imposed by statute and cannot undo what has already been done; only certiorari can quash a decision already made
  • Allegations of fraud must be determined on viva voce evidence and are not amenable to judicial review proceedings

Court orders

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  1. 1.The Notice of Motion dated 17th November 2010 and filed on 18th November 2010 is dismissed
  2. 2.Costs of the application are awarded to the respondents

Authorities

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Legislation

  • Law Reform ActSections 8 and 9
  • Law of Succession ActSections 45(1), 51 and 55
  • Registered Land ActCap. 300

Cases cited (9)

  • Council for Civil Service Unions vs. Minister for Civil Service
    [1985] A.C. 374
  • Republic vs. Kenya National Examinations Council ex parte Gathenji & Others
    Civil Appeal No. 266 of 1996
  • Lillian Muranja vs Kajiado Land Disputes Tribunal
    High Court JR Number 689 of 2001
  • Mohammed Zafar Niaz Saeed Chaudhry Vs Permanent Secretary, Ministry of Education
    Nairobi JR Miscellaneous Application NO. 76 of 2006
  • Ali Bin Hamisi Vs Salim Bin Hamisi Kirobe
    CA No. 18 of 1993
  • Omega Enterprises Limited Vs KTDC and 2 others
    Civil Appeal No. 9 of 1993
  • Karuri v Gituru
    Civil Appeal No. 25 of 1980
  • Simiyu v Walumbamala
    (1985) KLR 852
  • Patel v Singh (No. 2)
    (1987) KLR 585
Jurisdiction invoked
Law Reform Act, sections 8 and 9 (orders of mandamus, certiorari and prohibition)

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, "Republic v Land Registrar, Kajiado & another Ex Parte Joseph Ndegwa Kamau & 3 others [2018] KEELC 2069 (KLR)", Case Analysis (2018). JR Miscellaneous Application No. 82 of 2017 (formerly Machakos JR Misc. Application No. 242 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2069/eng@2018-07-17

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