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ELCAllowedELC JR No. 50 of 2017 (Milimani), later assigned the above case number upon transfer· [2019] KEELC 2384 (KLR)

Republic v Chief Land Registrar Exparte Wilson Tanui Barno & 2 others [2019] KEELC 2384 (KLR)

Environment and Land Court
18 July 2019
1,750 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ordered the Chief Land Registrar to return a landowner's original title deed and produce the missing parcel file after unexplained delay.

What this practically means

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Executive summary

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The ex parte applicants commenced judicial review proceedings in December 2017 at the Environment and Land Court, Milimani, seeking an order of mandamus against the Chief Land Registrar to compel him to produce the official land records and the original certificate of title for Land Reference Number 13287/45. The matter was transferred to the Environment and Land Court at Nakuru. The applicants deposed that they purchased the suit property in 1994, that a certificate of search application in November 2016 revealed the parcel file missing, that they lodged a Deed of Indemnity and surrendered the original certificate of title as directed, and that despite a demand letter of 27th June 2017 the respondent neither produced the records nor returned the title. The application was unopposed; the respondent filed no response and did not appear at the hearing. The court applied the judicial review principles restated by the Court of Appeal in Buffet Park Ltd v Republic and the scope of mandamus set out in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge. The court held that the Chief Land Registrar, created under Sections 12 and 13 of the Land Registration Act, was under a statutory duty to keep the register and supporting documents secure, accessible and reliable, and bound by Article 10 national values of good governance, transparency and accountability, making his omissions amenable to judicial review. Although the applicants did not prove registration as proprietors, the court found the withholding of the documents unexplained and granted mandamus compelling production of the original title and parcel file, with costs to the applicants.

Key legal issues

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01

Whether the Chief Land Registrar was under a statutory duty to keep and produce the land records and original title

Holding

The court held that the respondent was under a statutory duty under the Land Registration Act to keep the register and supporting documents secure, accessible and reliable, and to produce them when called upon.

Reasoning

Sections 12, 13, 14(2)(b) and (c), 7 and 9(1) of the Land Registration Act establish the office of the Chief Land Registrar and require him to keep the land register and parcel files and to maintain the register in a secure, accessible and reliable format, with information accessible under section 10. He was also bound by the national values of good governance, transparency and accountability under Article 10 of the Constitution, making his actions or omissions amenable to judicial review.

p. 2
02

Whether the ex parte applicants established a case for mandamus

Holding

The court found that the applicants had lodged a Deed of Indemnity, surrendered the original title, issued a demand letter, and that the respondent offered no explanation for the failure to produce the records and return the title; mandamus therefore issued.

Reasoning

Although the applicants did not prove registration as proprietors of the suit property, the court was persuaded on the documentary evidence, including a handwritten note confirming the title was missing, that they had applied for a search, been told the registry copy was missing, lodged a Deed of Indemnity, surrendered the original certificate of title, and demanded its return on 27th June 2017. No explanation was offered for the continued withholding, justifying mandamus compelling production of the title and parcel file.

p. 2

Legal principles established

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  • A public officer under a statutory duty to keep and make accessible land records is amenable to judicial review and mandamus will issue to compel production of such records where no explanation is given for failure to produce them upon demand.
  • A person seeking mandamus must show a legal right to the performance of an imperative public duty by the party against whom the order is sought.

Court orders

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  1. 1.An order of mandamus issued against the respondent compelling him to produce to the ex parte applicants the original of the certificate of title in respect of Land Reference Number 13287/45
  2. 2.An order of mandamus compelling the respondent to produce to the ex parte applicants the parcel file containing the instruments and documents that support subsisting entries in the land register in respect of Land Reference Number 13287/45
  3. 3.The ex parte applicants are granted costs

Authorities

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Legislation

  • Land Registration ActSections 7, 9(1), 10, 12, 13, 14(2)(b) and (c), 86
  • Fair Administrative Action Act, 2015Sections 7, 8 and 9
  • Constitution of Kenya, 2010Article 10

Cases cited (8)

  • Buffet Park Ltd v Republic & 2 others
    [2019] eKLR
  • Kingdom Kenya 01 Limited versus the District Land Registrar, Narok & Fifteen (15) others
    [2018] eKLR
  • Commissioner of Lands versus Hotel Kunste
    [1997] eKLR
  • David Mugo t/a Manyatta Auctioneers versus Republic – Civil Appeal No. 265 of 1997 (UR)
  • Zakayo Michubu Kibwange versus Lydia Kagina Japheth and 2 others
    [2014] eKLR
  • Prabhulal Gulabuland Shah versus Attorney General & Erastus Gathoni Mlano, Civil Appeal No. 24 of (1985) (UR)
  • Child Welfare Society of Kenya versus Republic and 2 others, Exparte Child in Family Forces Kenya
    [2017] eKLR
  • Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR
Jurisdiction invoked
Judicial review jurisdiction under Section 86 of the Land Registration Act and Sections 7, 8 and 9 of the Fair Administrative Action Act, 2015, with leave to commence judicial review proceedings granted

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 Chief Land Registrar Exparte Wilson Tanui Barno & 2 others [2019] KEELC 2384 (KLR)", Case Analysis (2019). ELC JR No. 50 of 2017 (Milimani), later assigned the above case number upon transfer. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2384/eng@2019-07-18

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