Republic v County Land Registrar Kisii County & 2 others Ex-parte Nora Bochaberi Oruochi [2018] KEELC 2893 (KLR)

The court exercised a special jurisdiction under sections 8 and 9 of the Law Reform Act and Order 53. Under section 8(5), appeals from such orders lie only to the Court of Appeal. Relying on Biren Amritlal Shah and the Supreme Court's Raila Odinga decision, the court held that the functus officio doctrine expresses the principle of finality; the decision maker cannot revoke or vary his own decision once given, save for correcting clerical or glaring errors on the face of the record. After making the order of reference the court retained only a supervisory role.

The court noted that section 18(2) of the Act divests it of jurisdiction to hear and determine boundary disputes, which explains why on 25th November 2015 it referred the matter to the land registrar with the parties' concurrence. The judicial review application was properly brought only to compel the registrar to perform that statutory duty, and the mandamus sought was granted through the order of reference and the subsequent ruling adopting the registrar's report.

In the ruling of 28th April 2017, which formed the background to the interested parties' application, the court had accepted the land registrar's report that the claimed road of access did not exist on the current Registry Index Map and had encroached onto the applicant's plot. Reliance was placed on sections 24, 25 and 26 of the Land Registration Act, 2012, and the court held that convenience for the interested parties or prolonged encroachment could not confer a right over the applicant's land.