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ELCPartially AllowedJudicial Review (Chamber Summons) dated 14th July 2020· [2020] KEELC 495 (KLR)
James Ndungu Kabiru v Chief Land Registrar & 2 others; Jamii Bora Bank(Interested Party) [2020] KEELC 495 (KLR)
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#What this practically means
#Executive summary
#The Ex-parte applicant, a successful purchaser at a public auction of property known as MWEA/MUTITHI/SCHEME/121 held on 28th September 2017 for approximately Ksh. 15.5 million, applied by Chamber Summons dated 14th July 2020 for leave to file a judicial review application seeking an order of mandamus to compel the Land Registrar (2nd respondent) to transfer and register the suit property in his name, and for such leave to operate as a stay and caveat on the register. He deponed that despite paying stamp duty, obtaining the requisite consents (including from the registered owner and the Mwea Land Control Board) and lodging all conveyance documents, the Registrar refused to process the registration on the basis of a handwritten note that 'there is a Court order pending/awaiting verification', relating to a ruling which had since been set aside in Misc. Application (J.R.) No. 2 of 2018. Although such applications are ordinarily ex-parte, the court directed service; no grounds of opposition or replying affidavit were filed, so the application proceeded undefended on 7th October 2020. Applying Republic v County Council of Kwale Ex-parte Kondo, the court held the annexed documents disclosed an arguable case. The court granted leave to apply for mandamus, directed the substantive application to be filed within 21 days, ordered the leave to operate as a stay and caveat on the register, and ordered costs of the application to abide the event. Judgment was delivered at Kerugoya on 10th November 2020 by E.C. Cherono J.
Key legal issues
#01
Whether the applicant met the threshold for leave to apply for judicial review (mandamus)
Holding
Leave was granted because the applicant annexed documentary material constituting prima facie evidence of an arguable case
Reasoning
The court applied the test in Republic v County Council of Kwale Ex-parte Kondo that leave is granted where, without going into the matter in depth, there is an arguable case fit for further investigation at a full inter-partes hearing. The applicant annexed the auction advertisement, certificate of sale, certificate of title, consents, stamp duty receipts, executed conveyance documents and the registration form bearing the registrar's handwritten note, which together constituted prima facie evidence of an arguable case warranting leave.
p. 4
Legal principles established
#- An applicant for leave to apply for judicial review must demonstrate an arguable case fit for further investigation at a full inter-partes hearing, without the court going into the matter in depth
Court orders
#- 1.The Ex-parte Applicant is granted leave to apply for an order of mandamus to compel the 2nd respondent to transfer and register him as the proprietor/owner of land parcel No. MWEA/MUTITHI/121
- 2.The Judicial Review application to be filed within 21 days from the date of the ruling
- 3.The leave granted do operate as stay and caveat against any action on the register of property known as MWEA/MUTITHI/SCHEME/121
- 4.The costs of the application to abide the event
- Jurisdiction invoked
- High Court/ELC supervisory jurisdiction over judicial review under Order 53 (Order 5B Rule 1 & 2 cited) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Ndungu Kabiru v Chief Land Registrar & 2 others; Jamii Bora Bank(Interested Party) [2020] KEELC 495 (KLR)", Case Analysis (2020). Judicial Review (Chamber Summons) dated 14th July 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/495/eng@2020-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.