Jared Otieno Awello v Land Registrar Homa- Bay County & ano[ther [2019] KEELC 4028 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st respondent is under a statutory public duty to register the applicant as co-owner
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.
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.
Whether the ex parte applicant is entitled to the orders sought
Yes; the court found the claim proved to the required standard and granted mandamus in terms of prayer one of the motion.
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.
Legal principles established
#- 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
#- 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.Each party to bear their own respective costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.