Jackson N. Marasua v District Land Registrar, Kajiado & Another [2020] KEELC 2593 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st Respondent abdicated his statutory duty under section 73 of the Land Registration Act by declining to remove the caution
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
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.
Whether the failure to remove the caution violated the applicant's constitutional rights
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
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.
Whether the uncontroverted averments of the applicant could found the orders sought
The respondents' failure to file a replying affidavit despite service amounted to an admission of the applicant's averments
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.
Legal principles established
#- 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
#- 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.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.Costs of the application awarded to the Applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.