Republic v Land Adjudication and Settlement officer Naivasha & 3 others Ex Parte John Chege Ndungu [2018] KEELC 2801 (KLR)
The bottom line
#The High Court ordered Kenyan land officials to transfer a settlement scheme plot to its buyer, ruling no Land Control Board consent was needed for settlement scheme purchases.
What this practically means
#Executive summary
#Key legal issues
#Whether Land Control Board consent was required for the transfer of Plot No. 508 Moi Ndabi Settlement Scheme
Consent was not required because the remaining transaction was one to which the Settlement Fund Trustees was a party, exempt under section 6(3) of the Land Control Act
The court examined the sale agreement of 20th December 2010 and found the transaction between the ex parte applicant and the 2nd respondent virtually concluded: the sale agreement was signed and the transfer deposited with the 1st respondent, who did not specifically deny receipt. The remaining conveyance was from the Settlement Fund Trustees, and section 6(3)(b) of the Land Control Act exempts transactions to which the Settlement Fund Trustees is a party from the consent requirement.
Whether the applicant was entitled to mandamus and prohibition against the respondents
Mandamus and prohibition issued against the 1st and 3rd respondents, who are public officers with a duty to facilitate the transfer, but not against the 2nd respondent, a private vendor
Relying on the Kenya National Examination Council case, the court reiterated that mandamus compels performance of a public duty imposed by statute. The 1st respondent had admitted the property was fully paid for and gave only a vague claim of awaiting 'requisite transfer documents' without specifying them, so the respondents had no valid reason to withhold the transfer. The 2nd respondent, a private vendor with no public duty, ought to have been an interested party.
Whether a declaration of bona fide ownership could issue in judicial review proceedings
No; the relief sought in prayer 6 was dismissed as declarations are not available under Order 53 judicial review proceedings
The court held that judicial review proceedings brought under Order 53 of the Civil Procedure Rules and Sections 8 and 9 of the Law of Reform Act contemplate only orders of mandamus, certiorari and prohibition. A declaration, being a separate form of relief, cannot be granted in such proceedings, and prayer 6 was therefore dismissed.
Legal principles established
#- Transactions to which the Settlement Fund Trustees are a party are exempt from the requirement of Land Control Board consent under section 6(3)(b) of the Land Control Act
- Orders of mandamus and prohibition can only issue against public bodies and compel performance of a public duty imposed by statute
Court orders
#- 1.An order of mandamus compelling the 1st Respondent to cause the registration and transfer of Plot No. 508 Moi Ndabi Settlement Scheme in favour of the ex parte applicant
- 2.An order of mandamus compelling the 1st and 3rd respondents to declare the ex parte applicant the bona fide owner of Plot No. 508 Moi Ndabi Settlement Scheme
- 3.An order of prohibition restraining the 1st and 3rd respondents from transferring Plot No. 508 Moi Ndabi Settlement Scheme to any person other than the ex parte applicant
- 4.The claim against the 2nd respondent is dismissed with no order as to costs
- 5.Costs of the proceedings awarded to the ex parte applicant, payable by the 1st and 3rd respondents
- Jurisdiction invoked
- Order 53 rule 3 of the Civil Procedure Rules, 2010 and Sections 8 and 9 of the Law of Reform Act, Chapter 26 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Land Adjudication and Settlement officer Naivasha & 3 others Ex Parte John Chege Ndungu [2018] KEELC 2801 (KLR)", Case Analysis (2018). Judicial Review (Notice of Motion dated 26th June 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2801/eng@2018-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.