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ELCPartially AllowedJudicial Review Application dated 23rd October 2017· [2019] KEELC 3057 (KLR)

Republic v County Land Registrar - Thika Land Registry & 2 others Ex Parte Francis Ndung’u Gitau & another [2019] KEELC 3057 (KLR)

High Court of Kenya
31 May 2019
LGL. Gacheru
2,244 words in judgment
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The bottom line

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Kenya's High Court ordered the Thika Land Registrar to rebuild a missing land file, but refused to undo a suspected land fraud without a full hearing.

What this practically means

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Executive summary

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The Ex-parte Applicants, administrators of the estate of the late Gitau Kamau, sought judicial review orders of mandamus under Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules. They sought to compel the County Land Registrar, Thika to reconstruct the file and green card for land parcel Ndarugu/Gacharage/794, to restore the parcel's boundaries, and to compel the District Land Surveyor, Thika to restore the mutation, all allegedly undone by a fraudulent combination of the parcel with Ndarugu/Gacharage/205 to create Ndarugu/Gacharage/796 by the late Gakuu Kibuthu. The Applicants relied on a ruling of 15th May 2013 that the Registrar had failed to comply with, and on the Registrar's own court testimony that the transaction documents could not be traced. The Respondents did not respond despite service. Applying the Gathenji and Shah principles on mandamus, the Court held that reconstruction of the file and green card was merited since record-keeping is the Registrar's public duty and no other remedy existed, and issued mandamus accordingly. However, it declined prayers 2 and 3, holding that restoring boundaries and mutation would presuppose fraud not proved before a court of competent jurisdiction, was not a judicial review question, and would adversely affect Gakuu Kibuthu, a non-party who would be condemned unheard contrary to natural justice. The Applicants received costs only for the successful prayer, borne by the Respondents. Judgment delivered at Thika on 31st May 2019 by L. Gacheru, Judge.

Key legal issues

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01

Whether mandamus can issue to compel reconstruction of the missing land file and green card

Holding

Yes - the Registrar acknowledged the file cannot be traced; it is the Registrar's duty to keep records, hence reconstruction was merited

Reasoning

The Court found it proved by evidence in court that the Land Registrar acknowledged the file relating to the suit property could not be traced. There being no other available remedy for the Applicants to obtain copies, and it being the Registrar's statutory duty to keep the records, mandamus lay to compel reconstruction of the file and green card.

p. 3
02

Whether mandamus could issue to restore boundaries and mutation allegedly lost through fraudulent combination

Holding

No - fraud must be proved in a court of competent jurisdiction and Gakuu Kibuthu, who would be affected, is not a party

Reasoning

Granting the orders would presuppose that the combination was illegal and fraudulent - a question not before the Court and not a judicial review matter. Gakuu Kibuthu was not a party and had had no chance to defend his acquisition; ordering restoration would condemn him unheard, contrary to natural justice.

p. 3

Legal principles established

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  • An order of mandamus compels the performance of a public duty imposed by statute where the person or body has failed to perform it to the detriment of a party with a legal right to expect performance
  • A court cannot issue orders affecting persons who are not parties to the case without hearing them

Court orders

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  1. 1.An Order of Mandamus compelling the County Land Registrar, Thika Land Registry to reconstruct the file and the Green Card of land parcel No. Ndarugu/Gacharage/794
  2. 2.Prayers 2 and 3 (restoration of boundaries and mutation) declined
  3. 3.Costs of the successful prayer awarded to the Ex-parte Applicants, borne by the Respondents

Authorities

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Legislation

  • Law Reform Act (Cap 26 Laws of Kenya)Sections 8 & 9
  • Civil Procedure RulesOrder 53 Rules 3(1) & (3)

Cases cited (5)

  • Samuel Kamau Macharia vs Ali Khan Ali Muses & 2 Others
    2014 eKLR
  • Kenya National Examinations Council vs Republic Ex parte Geoffrey Gathenji Njoroge
    1997 eKLR
  • Republic vs Kenya National Examinations Council Ex parte Gathenji & 8 Others, Civil Appeal No.234 of 1996
  • Shah vs Attorney General (No. 3), Kampala HCMC No.31 of 1969
    [1970] EA 543
  • Republic vs Kenyatta University Ex parte Ochieng Orwa Domnick & 7 Others
    [2018] eKLR
Jurisdiction invoked
Sections 8 & 9 of the Law Reform Act (Cap 26) and Order 53 Rules 3(1) & (3) of the Civil Procedure Rules

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 County Land Registrar - Thika Land Registry & 2 others Ex Parte Francis Ndung’u Gitau & another [2019] KEELC 3057 (KLR)", Case Analysis (2019). Judicial Review Application dated 23rd October 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3057/eng@2019-05-31

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