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ELCDismissedE.L.C. JR 49 of 2014· [2019] KEELC 4628 (KLR)

Republic v District Land Registrar Mbeere & another; Boniface Njeru Njue & 170 others( Interested Parties); Ex-parte Fred Rikana Ngochi & 3 others [2019] KEELC 4628 (KLR)

Environment and Land Court of Kenya
14 February 2019
YAY.M. Angima
2,696 words in judgment
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The bottom line

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The Environment and Land Court dismissed a bid to cancel neighbours' land titles, ruling the Registrar simply implemented a Minister's 1976 decision that was never overturned.

What this practically means

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Executive summary

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The ex-parte Applicants, members of Mukera clan, sought an order of mandamus compelling the District Land Registrar Mbeere and the Chief Land Registrar to rectify the register of various parcels of land by removing the names of some 171 interested parties (mainly members of Nditi clan) and reinstating the Applicants as proprietors. They contended that the 1st Respondent had irregularly cancelled their titles in 1997/1998 using a non-existent letter, without due process. The interested parties opposed, showing that the clans' dispute dated to the 1960s, was resolved by the Minister's Appeal Case No. 1 of 1976 under section 29 of the Land Adjudication Act, and that the Mukera clan's subsequent suits in Embu HCCC No. 165 of 2008 and Nyeri Civil Appeal No. 110 of 2011 were dismissed. One purported applicant, Fred Rikana Ngochi, successfully applied to be removed from the proceedings. The court held that the manner in which the Chief Land Registrar communicates internally with field Registrars to implement the Minister's decision is an internal matter that cannot found a cause of action; the 1st Respondent neither altered the Minister's decision nor made a new one. It further held that allowing the application would enable the Mukera clan to retain the suit properties through the back door after losing on merit at the Minister's appeal, the High Court and the Court of Appeal. The motion was dismissed in its entirety with each party bearing own costs.

Key legal issues

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01

Whether the 1st Respondent's implementation of the Minister's decision was unlawful

Holding

The 1st Respondent neither altered the Minister's decision nor made a new one, so no legal right of the Applicants was violated

Reasoning

The court found that under section 29(3) of the Land Adjudication Act the Chief Land Registrar is entitled to rectify the register upon finalisation of the Ministerial appeal. Whether implementation instructions are conveyed by letter, fax or email is internal and irrelevant to the disputing parties. The 1st Respondent did not alter the Minister's decision nor make a new one.

p. 3
02

Whether the application amounted to an attempt to re-litigate a concluded dispute

Holding

The Applicants, having lost on merit at the Minister's appeal, High Court and Court of Appeal, could not obtain the same remedy through judicial review

Reasoning

The Mukera clan lost the Minister's Appeal Case No. 1 of 1976 and subsequent suits in Embu HCCC No. 165 of 2008 and Nyeri Civil Appeal No. 110 of 2011. The Minister's adverse decision was never nullified. Allowing the application would let them retain the suit properties through the back door.

p. 3
03

Whether the Applicants were entitled to another hearing on the same issue

Holding

Natural justice was satisfied because clan representatives were heard by the Minister

Reasoning

Since the representatives of Mukera clan were accorded a hearing before the Minister, they did not require a further hearing before the 1st Respondent on the same issue; no breach of natural justice was established.

p. 3

Legal principles established

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  • The internal mode of communication within a government agency implementing a Minister's adjudication decision cannot found a cause of action, provided implementation is not contrary to the decision
  • A party who lost at the Minister's appeal and in the High Court and Court of Appeal cannot obtain the same remedy through a fresh judicial review application

Court orders

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  1. 1.The Applicants' notice of motion dated 20th March 2015 is dismissed in its entirety
  2. 2.Each party shall bear his own costs

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)sections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 53 Rule 3
  • Civil Procedure RulesOrder 53 Rule 4(2)
  • Land Adjudication Act (Cap 284)section 29
  • Land Adjudication Act (Cap 284)section 29(3)

Cases cited (2)

  • Njeru Mukundie & Others v The Attorney General and 8 Others
    Embu HCCC No. 165 of 2008
  • Nyeri Civil Appeal No. 110 of 2011
Jurisdiction invoked
Order 53 Rule 3 of the Civil Procedure Rules (judicial review proceedings), leave granted on 11th March 2015

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 District Land Registrar Mbeere & another; Boniface Njeru Njue & 170 others( Interested Parties); Ex-parte Fred Rikana Ngochi & 3 others [2019] KEELC 4628 (KLR)", Case Analysis (2019). E.L.C. JR 49 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4628/eng@2019-02-14

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