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ELCAllowedChamber Summons dated 22nd March 2019 (Judicial Review leave application)· [2019] KEELC 5089 (KLR)

Allan Njuki Murage & another (Suing as Administrator of the Estate of John Murage Nathan Gtheru v Attorney General & 3 others [2019] KEELC 5089 (KLR)

Environment and Land Court
29 October 2019
MOM.C. Oundo
2,075 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed you can sue the Land Registrar through judicial review to force correction of land register errors.

What this practically means

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Executive summary

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The Applicants, administrators of the estate of John Murae Gatheru, applied by Chamber Summons dated 22 March 2019 for leave to commence judicial review proceedings seeking mandamus and prohibition against the Attorney General, the Ministry of Lands, the Land Registrar and a culpable Ministry officer. Their grievance was a discrepancy between the Green Cards/RIM and the ground position of parcels Nyandarua/Oljoro Orok Salient/2205 and /200, alleging that a neighbouring proprietor's subdivisions fraudulently or erroneously reduced the deceased's acreage by about 13 acres, and that the Respondents had neglected to rectify the register under Section 79 of the Land Registration Act. The application was unopposed; the Respondents neither filed responses nor appeared. The court, Oundo J, framed one issue: whether the applicant had established grounds for leave. Applying Order 53 Rule 1 of the Civil Procedure Rules and the arguability test in Republic v County Council of Kwale ex parte Kondo, the court held that leave requires only an arguable case fit for further investigation without deep inquiry. It held the Land Registrar's statutory office and quasi-judicial powers under Sections 12, 13 and 14 of the Land Registration Act render the intended respondents amenable to judicial review, and that Section 79 permits rectification upon resurvey showing incorrect dimensions. Citing ex parte Gathenji on the scope of mandamus and Re Bivac International on judicial discretion, the court found an arguable case and granted leave for mandamus and prohibition, to be filed within 21 days.

Key legal issues

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01

Whether leave to apply for judicial review (mandamus and prohibition) should be granted against the Respondents for failure to rectify land register discrepancies

Holding

Leave granted; the respondents are public bodies amenable to judicial review and an arguable case was established on the material presented.

Reasoning

The court applied the leave test from Republic v County Council of Kwale ex parte Kondo, that leave is granted where an arguable case fit for further investigation exists without a deep inquiry. The intended respondents are public bodies: the Land Registrar holds a statutory office with quasi-judicial powers under the Land Registration Act, and Section 79 permits rectification where a resurvey shows an incorrect dimension or area. The Green Card discrepancy of roughly 13 acres therefore disclosed an arguable case warranting substantive hearing.

p. 3
02

Whether mandamus can compel the Land Registrar to rectify the register

Holding

Mandamus can compel performance of a statutory public duty; the court found the principles arguable on the material before it at the leave stage.

Reasoning

Relying on Republic v Kenya National Examinations Council ex parte Gathenji, the court set out that mandamus compels performance of a public duty imposed by statute where the duty-holder has failed to perform to the detriment of a party with a legal right to its performance, and that the order must command no more than the party is legally bound to perform. This framed the arguability of the mandamus claim against the Land Registrar's statutory rectification powers.

p. 3

Legal principles established

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  • Leave for judicial review is granted where, on the material available, there is an arguable case fit for further investigation at a full inter partes hearing, without going into the matter in depth.
  • Decisions of a Land Registrar exercising statutory quasi-judicial powers are amenable to judicial review.

Court orders

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  1. 1.Leave to file an application for orders of Mandamus and prohibition against the Respondents granted as prayed
  2. 2.Substantive application to be filed within 21 days upon delivery of the ruling

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 1
  • Land Registration ActSection 79
  • Land Registration ActSection 79(4)
  • Land Registration ActSection 12
  • Land Registration ActSection 13
  • Land Registration ActSection 14

Cases cited (3)

  • Republic v County Council of Kwale & Another ex parte Kondo & 57 others
    (1998) 1 KLR (E&L)
  • Republic vs Kenya National Examinations Council exparte Gathenji and 9 Others
    [1997] eKLR
  • Re Bivac International SA (Bureau Veritas)
    (2005) EA. 43
Jurisdiction invoked
Judicial review jurisdiction over public bodies exercising quasi-judicial statutory powers under the Land Registration Act, with leave sought under Order 53 Rule 1 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, "Allan Njuki Murage & another (Suing as Administrator of the Estate of John Murage Nathan Gtheru v Attorney General & 3 others [2019] KEELC 5089 (KLR)", Case Analysis (2019). Chamber Summons dated 22nd March 2019 (Judicial Review leave application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5089/eng@2019-10-29

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