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ELCAllowedMiscellaneous JR Application No. 109 of 2019· [2020] KEELC 2593 (KLR)

Jackson N. Marasua v District Land Registrar, Kajiado & Another [2020] KEELC 2593 (KLR)

Environment and Land Court
28 April 2020
3,057 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court forced the Kajiado Land Registrar to remove a caution on private land, ruling registrars must act on valid titles, not pass the buck.

What this practically means

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Executive summary

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The applicant, registered proprietor of Land Reference No. Kajiado/Mailua/4670 since 15th January 2014 under a Certificate of Title, moved the court by Notice of Motion dated 9th December 2019 seeking an order of prohibition against the District Land Registrar, Kajiado from placing any caution on the suit land without legal cause, and an order of mandamus compelling the Registrar and the Attorney General to remove a caution already registered. The caution had been lodged on the basis that the land was meant to be community land marked 'public utility'. The applicant sought removal under section 73 of the Land Registration Act; the Registrar convened a hearing on 22nd May 2019 and, in a ruling of 17th July 2019, confirmed that the applicant's title was supported by the registry records and the Registry Index Map, but declined to lift the caution, referring the parties to the National Land Commission or the court. The respondents, though served, did not enter appearance or respond, and the application was undefended. The court framed a single issue: whether the applicant was entitled to the orders sought. Relying on the Court of Appeal authorities on judicial review and mandamus, it held that the Registrar had abdicated his statutory duty under sections 71 to 73 of the Land Registration Act, that the failure to remove the caution violated Article 47, natural justice and the applicant's right to property under Article 40, and that the uncontroverted averments amounted to admission. The application was allowed in full: prohibition and mandamus were issued, with costs to the applicant.

Key legal issues

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01

Whether the 1st Respondent abdicated his statutory duty under section 73 of the Land Registration Act by declining to remove the caution

Holding

The 1st Respondent abdicated his responsibility by referring the dispute to court and the National Land Commission despite confirming from registry records that the applicant was the rightful registered owner

Reasoning

The court found that the 1st Respondent's own report confirmed the applicant's title of 15th January 2014, supported by the Registry Index Map, and that the public utility claim arose only four years after registration. Despite these observations, the Registrar failed to remove the caution and instead referred parties elsewhere. The court held this amounted to abdication of the administrative role conferred by sections 71 to 73 of the Land Registration Act.

p. 3
02

Whether the failure to remove the caution violated the applicant's constitutional rights

Holding

Failure to remove the caution violated Article 47 on fair administrative action, the rules of natural justice, and the applicant's right to property under Article 40

Reasoning

The court reasoned that administrative action must be expeditious, efficient, lawful, reasonable and procedurally fair under Article 47, read with the Fair Administrative Action Act. Given the uncontroverted evidence of proper title documentation and the absence of any justification for the caution, the Registrar's continued retention of it was unreasonable, procedurally unfair, and infringed the constitutional right to property.

p. 3
03

Whether the uncontroverted averments of the applicant could found the orders sought

Holding

The respondents' failure to file a replying affidavit despite service amounted to an admission of the applicant's averments

Reasoning

The application was undefended: the respondents were duly served as evidenced by affidavits of service but neither entered appearance nor filed a response. The court treated the uncontroverted averments as admitted, which supported the grant of both mandamus and prohibition on the strength of the applicant's documentary evidence.

p. 3

Legal principles established

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  • Mandamus compels the performance of a public duty imposed by statute where the person or body has failed to perform the duty to the detriment of a party with a legal right to expect its performance
  • A caution cannot subsist indefinitely over registered land where no reason is given for its continued existence

Court orders

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  1. 1.An order of Prohibition issued against the office of the 1st Respondent, their agents and personal assigns, from dealing with any matter pertaining to Land Reference No. KAJIADO/MAILUA/4670 as to placing a caution without any legal, proper and/or justified cause
  2. 2.An order of Mandamus issued compelling the 1st and 2nd Respondents to forthwith remove and/or lift the caution registered against Land Reference No. KAJIADO/MAILUA/4670, this being their statutory obligation as mandated by law
  3. 3.Costs of the application awarded to the Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 2(1), 3(3), 4(1); Order 53(1)(2)(3)(4)
  • Civil Procedure ActSections 1, 1A, 3, 3A
  • Law Reform ActSections 8 and 9
  • Land ActSection 150
  • Land Registration ActSections 71, 72, 73(1)(2)(3)(4)
  • Environment and Land Court ActSection 13(1)
  • Fair Administrative Action Act
  • Constitution of KenyaArticles 40 and 47

Cases cited (5)

  • Kingdom Kenya 01 Limited versus the District Land Registrar, Narok & Fifteen (15) others
    [2018] eKLR
  • Commissioner of Lands versus Hotel Kunste
    [1997] eKLR
  • David Mugo t/a Manyatta Auctioneers versus Republic
    Civil Appeal No. 265 of 1997 (UR)
  • Zakayo Michubu Kibwange versus Lydia Kagina Japheth and 2 others
    [2014] eKLR
  • Republic vs. Kenya National Examinations Council ex parte Gathenji & 8 Others
    Civil Appeal No 234 of 1996
Jurisdiction invoked
Order 53 of the Civil Procedure Rules; sections 8 and 9 of the Law Reform Act; section 13(1) of the Environment and Land Court Act; section 73(1) of the Land Registration Act

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, "Jackson N. Marasua v District Land Registrar, Kajiado & Another [2020] KEELC 2593 (KLR)", Case Analysis (2020). Miscellaneous JR Application No. 109 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2593/eng@2020-04-28

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