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ELCAllowedJudicial Review No 4 of 2017 (Formerly JR 23 of 2016)· [2019] KEELC 5021 (KLR)

Republic v County Land Adjudication & Settlement Officer-Laikipia County & another Exparte Kibaiga Kirangu Kimiri [2019] KEELC 5021 (KLR)

Environment and Land Court of Kenya at Nyahururu
17 January 2019
MOM.C. Oundo
2,058 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court ordered a Laikipia lands officer to release land transfer documents to the rightful allottee, ruling an unregistered rival sale claim carried no legal weight.

What this practically means

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Executive summary

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By a Notice of Motion dated 5th October 2016 under Order 53 Rules 3 and 4 of the Civil Procedure Rules, the ex parte applicant, Kibaiga Kirangu Kimiri, sought an order of mandamus compelling the County Land Adjudication & Settlement Officer, Laikipia County, to release the Discharge of Charge and Transfer for parcel Laikipia/Suguta (Ex P and D) 234, together with costs. The applicant was allotted the land by the Settlement Fund Trustee in 2002 and, having paid the requisite fees, the discharge documents were forwarded to the officer for collection, who nonetheless withheld them owing to a rival purchaser's claim by the 2nd interested party, Joseph Chris Ritich Chemasas, who claimed to have purchased the land through an agent, Paul Salonik Lotongai, under an authority to sell dated 30th May 2014 with spousal consent and Land Control Board consent. The court examined the disputed documents and found glaring discrepancies: the authority to sell was unregistered and of no legal consequence, the spousal consent described the signatory as 'a male of sound mind', and the Assistant County Commissioner confirmed the consent letter of 31st July 2014 did not emanate from his office. The court also noted no crime had been disclosed and investigations cannot continue indefinitely. Applying the principle that mandamus compels performance of public duty, the court allowed the application as prayed, with costs to the interested party.

Key legal issues

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Whether mandamus should issue to compel the 1st interested party to release the Discharge of Charge and Transfer to the ex parte applicant

Holding

Yes. The court found the applicant was allotted the land by the Settlement Fund Trustee, paid the requisite fees, and the officer withheld the documents without lawful justification; the alleged sale documents were of doubtful authenticity and unregistered.

Reasoning

The court found the applicant was allotted the suit land by the Settlement Fund Trustee in 2002 and paid the requisite fees, upon which the Discharge of Charge and Transfer were forwarded to the officer for collection. The officer's refusal, grounded on the 2nd interested party's purchaser claim, was not justified: the authority to sell was unregistered and thus of no legal consequence, the spousal consent bore glaring discrepancies, and the Assistant County Commissioner disowned the consent letter relied upon. A criminal investigation cannot proceed indefinitely and the alleged crime was undisclosed. Mandamus, a discretionary equitable remedy, was therefore merited to compel performance of the public duty.

p. 3

Legal principles established

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  • Mandamus lies where a public officer is under a statutory or public duty to perform a specific act and, despite demand, has not performed it
  • Judicial review is concerned with the decision-making process rather than private rights on the merits
  • Judicial review serves to ensure public agencies and officers act fairly and abide by the law

Court orders

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  1. 1.The ex parte applicant's Notice of Motion dated 5th October 2016 is allowed as prayed
  2. 2.An order of mandamus compelling the 1st interested party to release the Discharge of Charge and Transfer for the parcel of land known as Laikipia/Suguta (Ex P and D) 234 to Kibaiga Kirangu Kimiri
  3. 3.Costs of the application to be borne by the interested party

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 3 and 4
  • Agriculture Act Cap 318 Laws of KenyaSection 167
  • Oaths and Statutory Declaration Act
  • Land Control Act

Cases cited (3)

  • Shah vs Attorney General (No 3), Kampala HCMC No. 31 of 1969 [1970] EA 543
    [1970] EA 543
  • The Commissioner of Lands vs. Kunste Hotel Ltd [1997] eKLR
    [1997] eKLR
  • Nairobi Misc Civil Application 207 of 2015 (JR)
Jurisdiction invoked
Order 53 Rules 3 and 4 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 Adjudication & Settlement Officer-Laikipia County & another Exparte Kibaiga Kirangu Kimiri [2019] KEELC 5021 (KLR)", Case Analysis (2019). Judicial Review No 4 of 2017 (Formerly JR 23 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5021/eng@2019-01-17

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