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ELCPartially AllowedJudicial Review Application (Notice of Motion dated 10th May 2018)· [2019] KEELC 4028 (KLR)

Jared Otieno Awello v Land Registrar Homa- Bay County & ano[ther [2019] KEELC 4028 (KLR)

High Court of Kenya
13 February 2019
1,495 words in judgment
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The bottom line

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Kenya's High Court ordered the Land Registrar to register an administrator as co-owner of inherited land after the Registrar refused without giving any written reasons.

What this practically means

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Executive summary

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The ex parte applicant, Jared Otieno Owello, moved the High Court at Migori by notice of motion dated 10th May 2018, under Order 53 Rules 3 and 4 of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act and Article 47(1) of the Constitution, seeking an order of mandamus to compel the Chief Land Registrar to register him as co-owner of land parcel Kanyamwa/Kajwang/Kachola/Kadwet/366, the estate of his late father Awello Andhao. He held a grant of letters of administration intestate and a confirmed certificate from Ndhiwa SRM Succession Cause No. 40 of 2016, and the parcel was registered in the names of three brothers including the deceased. The Registrar, though served, neither appeared nor responded. The court framed two issues: whether the 1st respondent had a statutory public duty to register the applicant as co-owner, and whether the applicant was entitled to the orders sought. Relying on District Commissioner Kiambu -v- Republic Ex-parte Ethan Njau and other mandamus authorities, the court held that mandamus lies to compel a registrar who refuses to act where he should act. The applicant's entitlement flowed from vesting of the estate in him as personal representative under the Law of Succession Act and the Registrar's duties under Sections 3, 26(1) and 30 of the Land Registration Act. The Registrar's failure to give written reasons for non-registration contravened Article 47 on fair administrative action. The court found the claim proved to the required standard, granted mandamus in terms of prayer one of the motion, but ordered each party to bear their own costs following Rai -v- Rai and the proviso to Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the 1st respondent is under a statutory public duty to register the applicant as co-owner

Holding

Yes. The Land Registration Act imposes a duty on the Registrar to register interests and issue title upon transmission; the Registrar's unexplained refusal justified mandamus.

Reasoning

The applicant held a confirmed grant in Ndhiwa SRM Succession Cause No. 40 of 2016, and the estate's property vested in him as personal representative under Section 79 (cited as 7a) of the Law of Succession Act. The land was registered in the names of the deceased and his brothers. Sections 3, 26(1) and 30 of the Land Registration Act oblige the Registrar to effect registration and issue a certificate of title. The Registrar gave no written reasons for refusing registration, breaching Article 47 on fair administrative action, so mandamus issued as in the District Commissioner Kiambu case.

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Whether the ex parte applicant is entitled to the orders sought

Holding

Yes; the court found the claim proved to the required standard and granted mandamus in terms of prayer one of the motion.

Reasoning

The applicant established his legal representative status through gazettement, the grant of letters of administration intestate and the certificate of confirmation. The respondents, though duly served, neither appeared nor responded. Applying the authorities on mandamus as a remedy compelling statutory public duty, and given the absence of any written reasons from the Registrar, the court held the mandamus remedy readily available and granted the relief sought, while denying costs.

p. 2

Legal principles established

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  • Mandamus is an appropriate remedy to compel a land registrar to perform a statutory registration duty where the fault lies with the registrar
  • Mandamus compels performance of only a legal duty imposed by statute or common law
  • Where a registrar gives no written reasons for refusing registration, the mandamus remedy is readily available and the claim is proved to the required standard

Court orders

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  1. 1.An order of mandamus compelling the 1st respondent to register the applicant as co-owner of land parcel number Kanyamwa/Kajwang/Kachola/Kadwet/366, being the estate of the late Awello Andhao, in terms of order number one (1) of the Notice of motion dated 10th May 2018
  2. 2.Each party to bear their own respective costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 53 Rules 1, 2, 3 and 4
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Law Reform Act (Cap 26 Laws of Kenya)Sections 8 and 9
  • Constitution of Kenya, 2010Article 47(1)
  • Land Registration ActSections 3, 26(1) and 30
  • Civil Procedure Act (Cap 21 Laws of Kenya)Section 2 (definition of legal representative) and Section 27 (costs)
  • Law of Succession Act (Cap 160 Laws of Kenya)Section 7a (vesting of property in personal representative)

Cases cited (9)

  • Republic -v- Chief Land Registrar and 4 others ex parte Charles P. Chemmuttut
    (2017) eKLR
  • The Seventh Day Adventist Church (East Africa) Ltd -vs- The National Land Commission and 3 Others
    (2017) eKLR
  • Republic -v- the Principal Secretary, State Department of Interior and Coordination of National Government and another ex-parte Salim Awadh Salim
    (2017) eKLR
  • Cecilia Karuru Ngayu -v- Barclays Bank of Kenya and another
    (2018) eKLR
  • Khobesh Agencies Ltd and 32 others -v- Minister of Relations and 4 others
    (2013) eKLR
  • Shah -v- Attorney General (No. 3)
    Kampala HCMN No. 31 of 1969 (1970) EA 543
  • Republic -v- Attorney General and another ex-parte Jackson Musyoka Munyalo
    (2015) eKLR
  • District Commissioner Kiambu -v- Republic and others Ex-parte Ethan Njau
    (1960) E.A 109
  • Rai -v- Rai
    (2014) eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 Rules 3 and 4 of the Civil Procedure Rules, 2010; Article 47(1) of the Constitution of Kenya, 2010

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, "Jared Otieno Awello v Land Registrar Homa- Bay County & ano[ther [2019] KEELC 4028 (KLR)", Case Analysis (2019). Judicial Review Application (Notice of Motion dated 10th May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4028/eng@2019-02-13

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