Simon Salaon Pertet & another v County Land Registrar, Kajiado & another; Peterson Ndungu Marira & 2 others (Interested Parties) [2019] KEELC 2169 (KLR)
The bottom line
#A Kenyan court ordered the Kajiado Land Registrar to demarcate disputed land boundaries within 90 days after eight years of inaction.
What this practically means
#Executive summary
#Key legal issues
#Whether the Land Registrar Kajiado owed a public duty to demarcate the boundaries of the suit parcels and whether mandamus should issue for the failure to perform it
Mandamus issued because the Registrar, having a statutory duty under sections 18 and 19 of the Land Registration Act, failed to act on the applicants' request of 19th July 2011
Sections 18 and 19 of the Land Registration Act vest the mandate to fix boundaries in the Land Registrar, and the court cannot entertain a boundary dispute before such determination. The applicants and interested parties are registered proprietors who notified the Registrar in July 2011 of a boundary dispute but no action was taken. The court relied on the Gathenji principles that mandamus lies to compel performance of a public duty, and held that declining mandamus would leave the parties without an effective remedy.
Whether the applicants and interested parties were entitled to the judicial review orders sought
The application was found merited and mandamus was granted
The respondents, though duly served, did not enter appearance or respond, so the averments were uncontroverted. Ownership of the parcels was not disputed, the 2011 official search and RIM map tallied with the 1993 mutations, and a private surveyor's report indicated encroachment. Associating with the cited authorities, the court held the applicants entitled to mandamus.
Legal principles established
#- An order of mandamus compels the performance of a public duty imposed by statute where the person or body has failed to perform the duty to the detriment of a party with a legal right to expect performance
- Sections 18 and 19 of the Land Registration Act give the Land Registrar the legal mandate to determine boundaries before a court can entertain any boundary dispute
Court orders
#- 1.An order of mandamus issued directing the Land Registrar Kajiado, through the office of the Honourable Attorney General, to demarcate and put boundary marks on LR KAJIADO/KAPUTIEI NORTH/2234, 2233 and 2232 within 90 days from the date of the order
- 2.The Police County Commander, Kajiado County to supervise the enforcement of the order of mandamus
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Section 8 of the Law Reform Act and Order 53 Rule 1(1), (2), (3) and (4) of the Civil Procedure Rules (judicial review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Salaon Pertet & another v County Land Registrar, Kajiado & another; Peterson Ndungu Marira & 2 others (Interested Parties) [2019] KEELC 2169 (KLR)", Case Analysis (2019). ELC Misc Application No. 35 of 2018 (Formerly Machakos Misc. Application No. 134 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2169/eng@2019-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.