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ELCDismissedJudicial Review Miscellaneous Application (filed 24th October 2018)· [2020] KEELC 1982 (KLR)

Republic v Chief Land Registrar & 2 others; James Ndungu Kabiru (Interested party), Ex-parte Jamii Bora Bank [2020] KEELC 1982 (KLR)

Environment and Land Court
29 May 2020
ECE.C. Cherono
2,140 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A lender who forced an auction cannot force the land registrar to complete the transfer without proof the registrar actually refused properly presented documents.

What this practically means

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Executive summary

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The Ex-parte Applicant, a chargee, obtained leave in October 2018 to commence judicial review proceedings seeking an order of mandamus compelling the 2nd Respondent, the Land Registrar, to transfer Land Reference No. MWEA/MUTITHI/SCHEME/121 to the Interested party, which had purchased the property at a public auction on 14th September 2017 for Ksh. 15,500,000 following the borrower Martin Robin Kinuthia's default on a Ksh. 24.5 million facility. Leave operated as a stay and caveat on the register. The substantive motion was filed on 17th January 2019. The Respondents opposed, explaining that the title history was clouded: Justice Ong'udi's ruling of 16th November 2011 in Misc. E.L.C J.R No. 81/200 (Embu) quashed the Wanguru Land Disputes Tribunal award that had conferred title to Ndoro Njinjo, and the rectified order of 20th January 2015 entitled Samuel Kanja Kinunu to be restored as proprietor, meaning entries after entry 12 on the green card ought to have been cancelled. The Registrar stated she had not effected either the 2015 order or the auction transfer because two competing interests existed and no court direction had been given on the fate of the Applicant's interest. Framing two issues - whether mandamus principles were established and costs - the court applied the Gathenji principles and held that mandamus requires a specific legal right with no specific remedy, and proof that the Registrar was presented with the transfer instruments and unlawfully refused to register them. The Applicant tendered no dates, documents, complaint letters, or affidavit from the auction purchaser; indeed the purchaser, not the Applicant whose charge was satisfied, was the proper complainant. The motion was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the principles for grant of mandamus were established

Holding

No - mandamus was refused because the Applicant failed to prove the Registrar was presented with the transfer instruments and refused to register them, and because the proper person to seek registration is the auction purchaser (Interested party), not the Applicant whose charge was satisfied

Reasoning

Relying on Republic v Kenya National Examinations Council Ex-parte Gathenji, the court held mandamus compels performance of a public duty owed to one with a legal right. The Applicant made only general allegations: no dates of attending the Registrar, no annexed transfer documents, no letter of complaint, and no affidavit from the Interested party purchaser. The Registrar's refusal under Section 14(c) of the Land Registration Act to proceed where competing court orders exist was not shown to be an abuse of discretion under Article 129.

p. 3
02

Costs of the judicial review proceedings

Holding

Each party to bear their own costs

Reasoning

Having dismissed the substantive motion, the court exercised its discretion on costs by making no award against any party.

p. 3

Legal principles established

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  • Mandamus issues only where there is a specific legal right and no specific legal remedy for enforcing that right, compelling performance of a public duty to the detriment of a party with a legal right to expect performance
  • A Registrar's decision whether to register an instrument is discretionary, but that discretion must be exercised accountably and refusing to register without proper reasons amounts to abuse of discretion justifying judicial intervention

Court orders

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  1. 1.The Notice of Motion dated 2nd January 2019 fails and is dismissed
  2. 2.Each party to bear his/her own costs of the suit

Authorities

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Legislation

  • Law Reform ActSection 8(2), Cap. 26
  • Civil Procedure RulesOrder 53 Rule 1 (2010, made under Cap. 21)
  • Fair Administrative Actions ActPart III, No. 4 of 2015
  • Land Registration ActSection 14(c), Cap. 300
  • Constitution of KenyaArticle 129

Cases cited (1)

  • Republic Vs Kenya National Examination Council Ex-parte Gathenji & others
    Civil Appeal No. 266 of 1996 (unreported)
Jurisdiction invoked
Section 8(2) of the Law Reform Act, Cap. 26, Order 53 Rule 1 of the Civil Procedure Rules 2010 and Part III of the Fair Administrative Actions Act, No. 4 of 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 Chief Land Registrar & 2 others; James Ndungu Kabiru (Interested party), Ex-parte Jamii Bora Bank [2020] KEELC 1982 (KLR)", Case Analysis (2020). Judicial Review Miscellaneous Application (filed 24th October 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1982/eng@2020-05-29

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