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ELCAllowed· [2020] KEELC 3007 (KLR)

Isaac Isiaho Faro & 3 others v Attorney General & 3 others [2020] KEELC 3007 (KLR)

Environment and Land Court
23 April 2020
2,552 words in judgment
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The bottom line

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Kenya's Environment and Land Court ordered officials to finally issue land titles to 183 families who waited over 40 years on land they had bought and occupied.

What this practically means

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Executive summary

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This was an unopposed constitutional petition in the Environment and Land Court at Eldoret in which two petitioners, suing on their own behalf and as representatives of 183 persons occupying LR No. 1763/3 in Nandi County, sought a declaration that the respondents had violated Article 60(1)(b) of the Constitution by failing to register them as proprietors, and an order of mandamus compelling the 3rd and 4th respondents to register the 183 members as absolute proprietors of their respective parcels. The petitioners, former members of the now defunct Yala Farmers Company Limited, purchased the land, took possession, paid for survey and Registry Index Maps, and had the area list authenticated by the Area Chief and forwarded to the 3rd respondent, yet titles were never issued despite occupation exceeding 40 years. The respondents entered appearance but filed neither a response to the petition nor submissions. Relying on Israel Otieno Agina v Attorney General, the court treated the petitioners' facts as uncontroverted. It framed two issues: whether the petitioners' rights had been violated, and who should bear costs. The court held that the failure to issue titles violated the petitioners' right to property under Article 40 read with Article 27(4), and that registration was a statutory public duty under section 30 of the Land Registration Act whose non-performance justified mandamus, applying Shah v Attorney General (No. 3) and Republic v Kenya National Examinations Council ex parte Gathenji. The petition was allowed as prayed: mandamus issued compelling the 3rd and 4th respondents to register the 183 members as absolute proprietors, and the respondents were ordered to pay costs.

Key legal issues

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01

Whether the respondents' failure to issue titles to the petitioners violated their right to property under Article 40 of the Constitution

Holding

Yes. The petitioners bought the suit land, took possession, paid for survey, and followed due process for over 40 years without objection or eviction; the State's unexplained failure to register them deprived them of security of tenure and amounted to a violation of Article 40 read with Article 27(4).

Reasoning

The petition was unopposed; the respondents filed no replying affidavit, so the facts stand uncontroverted. Article 40(3) prohibits State deprivation of property without public purpose and just compensation. The petitioners demonstrated compliance with all procedures for registration, including payment for RIMs and authentication of the area list by the Area Chief. No reason was advanced for the decades-long failure to issue titles, and the failure violated their right to property and security of tenure and was discriminatory.

p. 4
02

Whether mandamus should issue to compel the 3rd and 4th respondents to perform the statutory duty of registration and issuance of titles

Holding

Yes. Registration is a statutory public duty under section 30 of the Land Registration Act; the petitioners have a legal right to be issued with title deeds and have done all required of them, so mandamus compels the 3rd and 4th respondents to register them.

Reasoning

Applying Shah v Attorney General (No. 3) and Republic v Kenya National Examinations Council ex parte Gathenji, mandamus is available to compel performance of a public statutory duty where there is a specific legal right and no more appropriate remedy. Section 30 of the Land Registration Act authorises the Registrar to issue certificates of title where none has been issued; the respondents' refusal to perform this duty after the petitioners fulfilled their part justified the order.

p. 4

Legal principles established

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  • Failure to file a replying affidavit renders the facts raised in a petition and the supporting affidavits uncontroverted and to be taken as true and correct
  • Mandamus may issue to compel a public officer to perform a statutory public duty owed to an individual where the officer has failed to perform it

Court orders

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  1. 1.Declaration implicit in the finding that the respondents violated the petitioners' right to property under Article 40 read with Article 27(4) of the Constitution by failing to register them as proprietors
  2. 2.Order of mandamus compelling the 3rd and 4th respondents to register the 183 members as the absolute proprietors of the respective parcels where they are settled upon the land known as LR No. 1763/3
  3. 3.Respondents to pay costs of the petition

Authorities

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Legislation

  • Constitution of KenyaArticles 10(2)(c), 22(2)(b), 23(1), 23(3), 27(1),(2)&(3) and 27(4), 40, 40(3), 47, 50, 60(1)(b), 67, 67(2)(c), 155(1), 156, 156(4)(a)&(b), 162(2)(b), 259
  • Land Registration ActNo. 3 of 2012, sections 12 and 30(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 15

Cases cited (3)

  • Israel Otieno Agina v. the Attorney General
    (2011) eKLR
  • Shah vs. Attorney General (No. 3)
    Kampala HCMC No. 31 of 1969 [1970] EA 543
  • Republic vs. Kenya National Examinations Council ex parte Gathenji & 8 Others
    Civil Appeal No 234 of 1996
Jurisdiction invoked
Articles 22(2)(b), 23(1), 23(3) and 162(2)(b) of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Isaac Isiaho Faro & 3 others v Attorney General & 3 others [2020] KEELC 3007 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3007/eng@2020-04-23

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