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ELCDismissedE.L.C. Misc Application Case No. 31 of 2014· [2018] KEELC 3007 (KLR)

Republic v Commissioner of Lands & 3 others Exparte Diocese of Embu Registered Trustees & 2 others [2018] KEELC 3007 (KLR)

Environment and Land Court of Kenya
12 April 2018
2,375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled it cannot force the Commissioner of Lands to allocate trust land, because the law gives that office discretion, not a binding duty.

What this practically means

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Executive summary

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The ex-parte Applicant, Diocese of Embu Registered Trustees, sought orders of mandamus and prohibition by notice of motion dated 11th June 2007 to compel the Commissioner of Lands to issue a letter of allotment of trust land parcel Evurori/Evurori/1067 (recommended for allocation by the defunct County Council of Embu to the Diocese of Meru Registered Trustees in 1979 and allegedly assigned to the Applicant for Ishiara Secondary School), to compel the Chief Land Registrar to issue a title deed, to compel the Clerk of Mbeere County Council to remove a caution, to compel removal of a restriction, and to stop and remove the Kenya Police from the suit property. The 3rd Respondent conceded the land was trust land but contended the offer lapsed and the property vested in the County Council of Mbeere upon its creation in 1996; the 4th Respondent said conditions of the offer were unfulfilled and Ministerial consent under section 144(5) of the Local Government Act was required; the interested parties asserted adverse proprietary claims and pending civil suits. The court framed one principal question: whether the Applicant was legally entitled to allocation of trust land. Applying the scope of mandamus from the KNEC case, the court held that section 53 of the Trust Land Act gave the Commissioner a discretion to execute grants and no legal obligation to alienate trust land on every local authority request. The Applicant also failed to demonstrate a legal or statutory duty, and the court noted the office of Commissioner of Lands no longer exists post-Constitution 2010. The motion was dismissed with costs to the 3rd and 4th Respondents only.

Key legal issues

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01

Whether mandamus lies to compel the Commissioner of Lands to issue a letter of allotment of trust land

Holding

No - the duty under section 53 of the Trust Land Act was discretionary; there was no legal obligation to alienate trust land on every request from a local authority

Reasoning

Section 53 of the Trust Land Act vested the 1st Respondent with a discretion to execute grants, leases, licences or other documents in relation to trust land. Mandamus cannot command how a discretionary duty is performed. The Applicant did not demonstrate that refusal to allot was a violation of a recognized legal right or principle of fair treatment, so mandamus could not issue as framed or at all.

p. 3
02

Whether the reliefs ancillary to the principal mandamus could be granted

Holding

No - once the basis of the judicial review prayers failed, prayers 2 to 7 had no foundation

Reasoning

The court reasoned that all prayers were hinged on the single question whether the Applicant was legally entitled to allocation of the trust land. Since the mandamus failed for want of a mandatory legal duty, the remaining prayers (title deed, removal of caution and restriction, prohibition against the police, and removal of structures) fell with it and were refused.

p. 3

Legal principles established

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  • Mandamus cannot compel a public officer to act in a particular way where the statute leaves him a discretion; it commands only what the party is legally bound to perform
  • A judicial review applicant must demonstrate a legal or statutory duty on the public body to act, not merely narrate a grievance

Court orders

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  1. 1.The Applicant's notice of motion dated 11th June 2007 is dismissed with costs to the 3rd and 4th Respondents only

Authorities

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Legislation

  • Civil Procedure Rules (former Order LIII)Order LIII
  • Local Government Act (Cap 265)section 144(5)
  • Trust Land Act (Cap 288) (now repealed)section 53
  • Government Proceedings Actsection 16
  • Constitution of Kenya 2010Article 67(2)(a)
  • National Land Commission Actnull

Cases cited (1)

  • Republic Vs Kenya National Examination Council ex-parte Geoffrey Gathenji Njoroge & 9 Others
    [1997] eKLR
Jurisdiction invoked
Judicial review jurisdiction under the former Order LIII of the Civil Procedure Rules (leave granted to apply for orders of mandamus 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 Commissioner of Lands & 3 others Exparte Diocese of Embu Registered Trustees & 2 others [2018] KEELC 3007 (KLR)", Case Analysis (2018). E.L.C. Misc Application Case No. 31 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3007/eng@2018-04-12

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