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ELCAllowedJudicial Review Misc. Application No. 108 of 2019· [2020] KEELC 2973 (KLR)

Republic v Land Registrar Kajiado Land Registry Ex parte Jackson Parsemei Ole Ntusero [2020] KEELC 2973 (KLR)

Environment and Land Court
5 May 2020
1,979 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Kajiado Land Registrar was court-ordered to remove a deceased co-owner's name from a title and register the son as sole owner within 90 days.

What this practically means

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Executive summary

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The ex parte applicant, Jackson Parsemei Ole Ntusero, moved the Environment and Land Court at Kajiado by Notice of Motion dated 3rd December 2018, seeking an order of mandamus compelling the Land Registrar, Kajiado Land Registry, to delete the name of his deceased mother, Ntiamoye Ntusero Lengira, from the register and to register him as sole proprietor of LR No. KJD/KAPUTIEI NORTH/32975. He relied on Articles 23, 27, 31, 40 and 47 of the Constitution, Order 53 Rules 1 and 3 of the Civil Procedure Rules and the Fair Administrative Actions Act. He explained that the land was jointly owned with his mother, who died on 6th March 2011, and that his letters of 8th February 2016, 9th May 2018 and 26th July 2019 requesting deletion of her name and issuance of a new title went unanswered. The Respondent, though served and granted leave, filed no replying affidavit or submissions. The court framed a single issue: whether the applicant was entitled to the orders sought. It found the joint proprietorship and proof of death undisputed, and held that section 60 of the Land Registration Act imposed a mandatory administrative duty on the Registrar to delete a deceased joint tenant's name upon registration of the death certificate. The Registrar's unexplained inaction breached the Land Registration Act, the Fair Administrative Action Act and Articles 27, 40 and 47, amounting to procedural impropriety. Applying the Gathenji principles on mandamus, the court issued an order of mandamus directing the Registrar to delete the deceased's name and register the applicant as sole proprietor within ninety days, and awarded the applicant the costs of the suit.

Key legal issues

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01

Whether the Land Registrar was under a statutory duty under section 60 of the Land Registration Act to delete the name of the deceased joint proprietor and register the applicant as sole proprietor

Holding

Yes; the Registrar had a clear administrative role to delete the deceased mother's name and issue a new title, which he failed to perform

Reasoning

The court held that the applicant and his late mother were joint registered proprietors and that her death certificate was supplied. Section 60 of the Land Registration Act imposed a mandatory duty on the Registrar to delete a deceased joint tenant's name upon proof of death. Two unanswered demand letters were annexed and the Registrar, though served, filed no replying affidavit, so the averments stood uncontroverted and amounted to admission. The failure breached the Land Registration Act and the Fair Administrative Action Act.

p. 2
02

Whether the Registrar's inaction violated the applicant's constitutional rights under Articles 27, 40 and 47 and the Fair Administrative Action Act

Holding

Yes; the failure to respond or act violated the applicant's rights and amounted to procedural impropriety

Reasoning

Relying on Article 47 and section 4 of the Fair Administrative Action Act, the court found the Registrar was obliged to act expeditiously, fairly and lawfully. His failure to respond to the applicant's correspondence and to controvert the averments was against the rules of natural justice, infringed Articles 27, 40 and 47, and constituted procedural impropriety, justifying mandamus.

p. 2

Legal principles established

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  • Section 60 of the Land Registration Act obliges the Registrar, upon proof of death of a joint proprietor, to delete the deceased's name from the register by registering the death certificate
  • Mandamus compels performance of a public duty imposed by statute where the person or body bound has failed to perform it to the detriment of a party with a legal right to expect performance

Court orders

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  1. 1.An order of mandamus be and is hereby issued directing the Land Registrar Kajiado Land Registry to delete the name of Ntiomoye Ntusero Lengira (deceased) from the register and to register the Applicant Jackson Parsemei Ole Ntusero as the sole proprietor of Land Reference No. KJD/ KAPUTIEI NORTH/ 32975 within ninety (90) days from the date hereof
  2. 2.The Applicant is awarded the costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticles 23, 27, 31, 40, 47
  • Civil Procedure RulesOrder 53 Rule 1 & 3
  • Fair Administrative Actions Actsection 4
  • Land Registration Actsection 60

Cases cited (7)

  • Republic Vs Attorney General & Another Ex parte Ongata Rongai Works Limited
    (2016) eKLR
  • Republic Vs Kenya National Examinations Council Ex parte Gathengi & 8 Others
    Civil Appeal No. 234 of 1996
  • Shah Vs Attorney General (No. 3)
    Kampala HCMC No. 31 of 1969 (1970) EA 543
  • 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
Jurisdiction invoked
Articles 23, 27, 31, 40 and 47 of the Constitution; Order 53 Rules 1 & 3 of the Civil Procedure Rules; Fair Administrative Actions 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, "Republic v Land Registrar Kajiado Land Registry Ex parte Jackson Parsemei Ole Ntusero [2020] KEELC 2973 (KLR)", Case Analysis (2020). Judicial Review Misc. Application No. 108 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2973/eng@2020-05-05

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