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ELCPartially AllowedJudicial Review Notice of Motion dated 8/8/2018 (Kitale)· [2019] KEELC 3903 (KLR)

Republic v Land Registrar, Trans-Nzoia & another Ex parte Mary Odhiambo & another [2019] KEELC 3903 (KLR)

High Court of Kenya (Judicial Review Division)
28 March 2019
3,458 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The High Court ordered Kenya's Land Registrar to release a withheld lease title within 14 days, ruling a two-year delay without reasons was unlawful.

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 Jefitha George Odhiambo Dosio, sought judicial review orders of mandamus compelling the Land Registrar, Trans Nzoia, to complete the registration of their grant of lease over Kitale Municipality Block 8/2016 and release the lease title, and prohibition restraining him from cancelling or interfering with their ownership. They alleged that the lease documents had been prepared by the Chief Land Registrar, executed by them after payment of Kshs.2,100, and then withheld for over one and a half years despite demand letters, allegedly to facilitate third parties grabbing the land. The Land Registrar, in a replying affidavit sworn by Nelson Odhiambo, explained that a ground verification exercise found a third party in occupation with a permanent house not belonging to the applicants, and the lease documents were returned to Nairobi. The court framed two issues: entitlement to mandamus and whether prohibition should issue. It applied the Gathenji test for mandamus and held that once the Chief Land Registrar had prepared and forwarded the lease for registration, the decision that the applicants be registered had been made at a higher level; the local Registrar's role was merely administrative. The applicants' interest had passed upon execution of the lease, they had a legitimate expectation to release of the documents, and third-party occupation of unalienated government land conferred no registrable rights. The Registrar's failure to give reasons or respond to inquiries breached sections 4(1) and 4(2) of the Fair Administrative Action Act, and the roughly two-year delay was unreasonable. The court allowed the application, granting mandamus to compel registration and release of the lease within 14 days, with costs to the respondents; no order of prohibition was included in the final orders.

Key legal issues

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01

Whether mandamus lies to compel the Land Registrar to complete registration and release the lease

Holding

Mandamus issued. The decision to register had already been made at the level of the Chief Land Registrar; the local Land Registrar's role was merely administrative and he was legally bound to complete registration and release the executed lease.

Reasoning

The court held that once the Chief Land Registrar had prepared and forwarded the lease for registration in the applicants' names, the decision that they be registered as lessees had been made at a higher level. The applicants had paid outgoings, the survey was done, and the lease was executed, so their interest had passed and they were entitled to the documents. The Registrar's refusal was not pegged on any statutory provision, and third-party occupation of unalienated government land confers no unregistered rights to bar registration.

p. 3
02

Whether the Land Registrar's conduct violated the Fair Administrative Action Act

Holding

Yes. The Registrar detained the title documents for over one and a half years and failed to give any oral or written reasons, violating sections 4(1) and 4(2) of the Fair Administrative Action Act.

Reasoning

Section 4 entitles every person to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, and to written reasons for adverse administrative action. The Registrar's response disclosed only a ground verification exercise, without any statutory basis for withholding the documents, and nothing showed he ever responded to the applicants' demand letters. A delay of about two years was held to be far beyond a reasonable time.

p. 4
03

Whether an order of prohibition should issue

Holding

No order of prohibition was granted; the court's final orders were confined to mandamus and costs.

Reasoning

Although sought in the motion, prohibition was not included in the orders granted. The court reasoned that the applicants' legitimate expectation was to release of the registered lease, that no other person was alleged to hold title such that registration would be a double allocation, and that mandamus compelling completion of registration and release addressed the grievance.

p. 4

Legal principles established

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  • Mandamus will issue where the duty is a public duty, it specially affects the rights of an individual, and there is no other specific appropriate remedy; it cannot compel performance beyond the legal obligation of the person directed.
  • Where the Chief Land Registrar has issued a lease for registration in an individual's name and the parties have executed it, the interest has passed and the local Land Registrar's role is merely administrative, making failure to release the documents and to give reasons a violation of the Fair Administrative Action Act.
  • A delay of about two years in releasing executed lease documents, without any written reasons to the parties, breaches sections 4(1) and 4(2) of the Fair Administrative Action Act.

Court orders

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  1. 1.An order of MANDAMUS compelling the 1st respondent to complete the registration of the applicants' grant of lease over the parcel of land known as KITALE MUNICIPALITY BLOCK 8/2016 and to release the lease title/certificate thereof to the applicants within 14 days hereof
  2. 2.The respondents shall bear the costs of these proceedings
Jurisdiction invoked
Judicial review jurisdiction over administrative action, section 4 of the Fair Administrative Action Act and Article 47 of the Constitution

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 Land Registrar, Trans-Nzoia & another Ex parte Mary Odhiambo & another [2019] KEELC 3903 (KLR)", Case Analysis (2019). Judicial Review Notice of Motion dated 8/8/2018 (Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3903/eng@2019-03-28

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