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ELCDismissedJudicial Review Application dated 9th December 2019 (Notice of Motion)· [2021] KEELC 837 (KLR)

Alice Muthoni Chege v National Land Commission & 2 others; Daniel Marenga Gachenga (Interested Party) [2021] KEELC 837 (KLR)

Environment and Land Court
18 November 2021
3,762 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner's bid to force Kenyan land agencies to fix a boundary failed because that job belongs to the Land Registrar, not the National Land Commission.

What this practically means

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Executive summary

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The Applicant, registered proprietor of L.R. No. 617 Dagoretti/Kangemi off Thiong'o Road, moved the Court by Notice of Motion dated 9th December 2019 seeking an order of mandamus to compel the National Land Commission and the Ministry of Lands and Physical Planning to ascertain the boundaries of a public road reserve adjacent to her plot, and further orders compelling encroachers, including the interested party, to vacate and demolish structures on the reserve. She alleged the interested party had encroached and constructed structures, and that the Respondents had failed to act despite complaints. The Respondents filed grounds of opposition, arguing that boundary disputes fall under Section 18 of the Land Registration Act for determination by the Land Registrar, that the Director of Surveys establishes boundaries, and that the application was an abuse of process. The Court framed three issues: competency of the application, the Respondents' mandate, and whether mandamus could issue. It held the Notice of Motion incompetent because it was filed in the Applicant's name rather than the Republic's, and because leave was granted on a relief (boundary ascertainment) not pleaded in the statement of facts. On the merits, the Court found neither Respondent has a statutory mandate to delineate boundaries; that duty lies with the Land Registrar under Sections 18 and 19 of the Land Registration Act. Mandamus therefore could not issue, as it would compel an illegality. The application was dismissed with costs.

Key legal issues

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01

Competency of the substantive judicial review application

Holding

The Notice of Motion was incompetent: it was filed in the Applicant's own name rather than the Republic, and leave was sought in respect of a relief (boundary ascertainment) not pleaded in the statement of facts

Reasoning

Judicial review proceedings are sui generis, governed by Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules. Upon grant of leave, the substantive application must be lodged in the name of the Republic and the affected person becomes the ex-parte Applicant. Further, reliefs in the Notice of Motion must correspond to those in the statement of facts; the relief for boundary ascertainment was introduced for the first time in the Chamber Summons seeking leave, without prior amendment of the statement of facts.

p. 3
02

Mandate of the Respondents to ascertain boundaries of public road reserves

Holding

Neither the National Land Commission nor the Ministry of Lands and Physical Planning is mandated to delineate or ascertain boundaries; that duty lies with the Land Registrar under Sections 18 and 19 of the Land Registration Act, 2012

Reasoning

The court examined Article 67(2) of the Constitution setting out the functions of the National Land Commission and observed that the Ministry deals with policy generation and enforcement, not boundary determination. Boundary ascertainment and fixing is a statutory function of the Land Registrar, and courts cannot entertain boundary disputes unless determined under Section 18. Granting mandamus against the Respondents would compel an illegality.

p. 5
03

Whether mandamus can issue

Holding

Mandamus cannot issue because the Respondents have no legal duty to perform the acts sought

Reasoning

Applying Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge, mandamus compels performance of a public duty imposed by statute where the duty-bearer has failed to perform. Since the 1st and 2nd Respondents have no such mandate, granting the orders would compel them to commit an illegality, which a court cannot sanction as it would be contrary to public policy and the rule of law. A court does not act in futility.

p. 6

Legal principles established

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  • Judicial review orders issue in the name of the Republic and the substantive Notice of Motion must be lodged accordingly
  • Mandamus cannot issue to compel performance of a duty the respondent is not legally mandated to perform
  • The mandate to ascertain and fix boundaries of registered land lies with the Land Registrar, and the court cannot entertain boundary disputes unless boundaries are determined under Section 18 of the Land Registration Act

Court orders

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  1. 1.The Notice of Motion Application dated 9th December 2019 is dismissed with costs

Authorities

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Legislation

  • Law Reform ActSections 8 and 9
  • Civil Procedure Rules, 2010Order 53
  • Constitution of Kenya, 2010Article 67(2)
  • Land Registration Act, 2012Sections 18 and 19
  • Survey ActCap. 299

Cases cited (4)

  • Welamondi vs The Chairman Electoral Commission
    [2002] eKLR
  • The Commissioner General, Kenya Revenue Authority vs Silvanus Onema Owaki t/a Marenga Filling Station
    [2001] eKLR
  • Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others
    [1997]
  • Republic v Kenya Civil Aviation Authority & another ex-parte Elite Earthmovers Limited
    [2017] eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap. 26) and Order 53 of the Civil Procedure Rules, 2010

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, "Alice Muthoni Chege v National Land Commission & 2 others; Daniel Marenga Gachenga (Interested Party) [2021] KEELC 837 (KLR)", Case Analysis (2021). Judicial Review Application dated 9th December 2019 (Notice of Motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/837/eng@2021-11-18

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