Republic v Attorney General & another Exparte Joyce Muthoni Michuki [2019] KEELC 1510 (KLR)
The bottom line
#The High Court refused to force a Land Registrar to register land transfers because a restriction on the land was still in place and had not been challenged.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant met the threshold for mandamus
The claim for mandamus was not merited and was disallowed
The Court applied the principles in Municipal Council of Mombasa v Republic and Pastoli v Kabale District Local Government, requiring proof of illegality, irrationality or procedural impropriety. The Registrar declined registration because a restriction lodged by the Chief Land Registrar prohibited dealings with the parcels. The Applicant challenged the refusal to register, not the restriction itself, and produced no evidence of attempting to remove the restriction. The Court held the restriction valid and unchallenged, so mandamus could not issue.
Whether the Land Registrar's refusal to register the transfers was lawful
The refusal was neither irrational nor improper given the subsisting restriction
The Registrar was within her powers under Section 76 of the Land Registration Act to respect the restriction. Registration of transfers is a dealing in land, prohibited under Section 76(2A) once a restriction is registered. The Applicant was allowed to present her papers and was given a reason for the refusal, so she was not treated unfairly.
Validity of the restriction placed by the Chief Land Registrar
The Court held the restriction valid, subject to any other finding, but declined to interrogate its legality as no orders were sought against it
Although the Applicant alleged no notice or inquiry preceded the restriction, no relief was sought against the restriction in the motion. The Court therefore could not adjudicate the alleged procedural impropriety in placing the restriction, and treated it as unchallenged.
Costs
Each party to bear its own costs
Though costs follow the event, Section 27 of the Civil Procedure Act gives the Court discretion; looking at the circumstances of the suit, the Court ordered each party to bear its own costs.
Legal principles established
#- Judicial review concerns the decision-making process, not the merits of the decision
- Once a restriction is registered in the register, dealings in the land are prohibited and the Registrar cannot register transfers while it subsists
- A party aggrieved by a restriction must first pursue its removal before seeking mandamus to compel registration
- The constitutional right to property under Article 40 is not absolute
Court orders
#- 1.The Notice of Motion application dated 13th May 2015 is dismissed entirely
- 2.Each party to bear her and/or its own costs
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court; orders sought under the law relating to mandamus and the Land Registration Act (No. 3 of 2012), with reliance on Articles 40 and 50 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & another Exparte Joyce Muthoni Michuki [2019] KEELC 1510 (KLR)", Case Analysis (2019). Judicial Review Application pursuant to Notice of Motion dated 13th May 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1510/eng@2019-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.