Republic v County Land Registrar, Kisumu County Land Registry & 2 others Exparte United Millers Limited; Agriculture and Food Authority (Interested Party) [2020] KEELC 3762 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether mandamus could issue to compel removal of the restriction
Mandamus issued because the applicant was the registered proprietor, the Registrar had given a 30-day notice of intention to remove the restriction which went unanswered, and the EACC had failed to conclude investigations or file any recovery suit
The court found the applicant was the registered proprietor with no declaration of illegality against the title. The Registrar had already signalled intention to remove the restriction under a 30-day notice with no objection lodged. The EACC, which opposed removal, had conducted investigations for over ten years without instituting proceedings. The delay was unreasonable and a restriction cannot stand sine die. The applicant therefore had a legal right with no effective remedy, satisfying the test for mandamus.
Whether the EACC acted within its mandate in opposing removal of the restriction
The EACC was acting within its statutory mandate to investigate and protect public property, but its delay was unreasonable
Section 11(1)(j) of the Ethics and Anti-Corruption Commission Act empowers the Commission to institute proceedings for recovery or protection of public property. Preliminary investigations indicated the laid-down procedure for sale of state corporation property was not followed, as there was no Board approval for the sale. The court nonetheless held that the Commission's failure to conclude investigations or file a recovery suit for over eight years was an unreasonable delay that justified mandamus.
Effect of the registered proprietor's title pending any finding of unlawful acquisition
Sections 24, 25 and 26 of the Land Registration Act vest absolute and indefeasible rights in the registered proprietor, subject to challenge only on grounds of fraud or unlawful acquisition established through due process
The court relied on the registration provisions of the Land Registration Act to hold that the applicant's registered leasehold interest is protected, and that Article 40(6) does not permit State institutions to strip enjoyment of property without a legally established finding of unlawful acquisition. A party asserting illegality must obtain a declaration through due process; mere ongoing investigation does not defeat a registered title.
Legal principles established
#- Mandamus will issue where there is a specific legal right and no specific legal remedy for enforcing that right, and the order must command no more than what the party against whom it is sought is legally bound to perform
- A restriction on a title cannot be left in place indefinitely; it must be followed by investigation and a decision
- A finding that property was unlawfully acquired under Article 40(6) must be through a legally established process
- The correct statutory provision for removal of a restriction is section 78(1) of the Land Registration Act, not section 73(2) which deals with cautions
Court orders
#- 1.An order of mandamus compelling the Land Registrar Kisumu County to remove the restriction registered as entry No. 6 on the 15th day of May, 2008 against Title No. Kisumu Municipality/Block 12/40
- 2.Costs to the exparte applicant
- Jurisdiction invoked
- Articles 22, 23, 40, 47, 50(1) and 67 of the Constitution; section 78 of the Land Registration Act No. 3 of 2012; section 14 of the National Land Commission Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Land Registrar, Kisumu County Land Registry & 2 others Exparte United Millers Limited; Agriculture and Food Authority (Interested Party) [2020] KEELC 3762 (KLR)", Case Analysis (2020). Judicial Review Application No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3762/eng@2020-01-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.