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ELCPartially AllowedChamber Summons dated 20/11/2020 (Thika)· [2021] KEELC 898 (KLR)

Republic v Land Registrar, Ruiru & another Ex-Parte;William Kibera Waiganjo(suing on behalf of Leah Wachu Waiganjo) [2021] KEELC 898 (KLR)

Environment and Land Court
8 November 2021
BEB M Eboso
829 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a chamber summons dated 20/11/2020, the ex parte applicant, William Kibera Waiganjo suing on behalf of Leah Wachu Waiganjo, sought leave to apply for judicial review orders of mandamus directed at the Land Registrar, Ruiru, to cancel and recall title number Ruiru/Ruiru East Block 2/350 held in the name of Jane Wanjiku Ngugi and rectify the register to show Leah Wachu Waiganjo as owner, pursuant to the judgment delivered on 10/12/2018 in Thika CMCC No. 1134 of 2004. He also sought a prohibitory order restraining the Registrar from demanding a clearance certificate from Nyakinyua Investment Limited, and an order compelling the County Land Registrar, Thika, to reconstruct the file or Green Card for the parcel. The respondents filed grounds of opposition contending the application was procedurally defective and that prayers 2 and 3 fell under Section 33 of the Land Registration Act and Regulation 28 of the Land Registration (General) Regulations, 2017. The court identified the sole issue as whether the applicant had satisfied the criteria for grant of leave. Applying the arguable-case test in Uwe Meixner v Attorney General, the court found allegations that the Land Registrar had failed to implement the lower court's decree, disclosing a proper basis for further consideration. It further held that Jane Wanjiku Ngugi was a necessary party and directed her joinder as an interested party. Leave was granted on the first prayer, with the substantive motion to be filed and served within 21 days, and costs in the cause.

Key legal issues

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01

Whether the applicant established an arguable case warranting leave for judicial review

Holding

Leave granted - allegations that the Land Registrar failed to discharge her mandate and the decree of the lower court disclosed a proper basis for further consideration

Reasoning

The court applied the arguable-case test from Uwe Meixner v Attorney General, noting the leave stage screens out frivolous applications and requires consideration of whether judicial review is the appropriate remedy. On the evidence there were allegations that the Land Registrar had failed to implement the decree in Thika CMCC No. 1134 of 2004, which sufficed for leave.

p. 2
02

Whether Jane Wanjiku Ngugi should be joined in the substantive motion

Holding

Yes - she is a necessary party and was directed to be joined as an interested party

Reasoning

The court found on the evidential material that Jane Wanjiku Ngugi, in whose name the title stands, is a necessary party for effective and complete adjudication of the intended judicial review motion, and directed that she be made an interested party and served with the substantive motion.

p. 2

Legal principles established

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  • Grant or refusal of leave is an exercise of judicial discretion, and the general test is whether the applicant has made out an arguable case.
  • The purpose of the leave stage is to weed out frivolous, vexatious or hopeless applications.
  • At leave stage the court also considers whether judicial review is the appropriate mode of redress.

Court orders

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  1. 1.Leave granted to the ex-parte applicant to apply for orders of mandamus directed at the Land Registrar, Ruiru, to cancel and recall title number Ruiru/Ruiru East Block 2/350 in the name of Jane Wanjiku Ngugi and rectify records to indicate Leah Wachu Waiganjo as the registered owner as per the judgment in Thika CMCC No. 1134 of 2004
  2. 2.The ex-parte applicant to file and serve the substantive notice of motion within 21 days
  3. 3.The ex-parte applicant to join Jane Wanjiku Ngugi as an interested party in the substantive notice of motion
  4. 4.Costs of the application in the cause
Jurisdiction invoked
Judicial review supervisory jurisdiction of the High Court / Environment and Land Court over inferior bodies; leave stage under Order 53 Civil Procedure Rules

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, Ruiru & another Ex-Parte;William Kibera Waiganjo(suing on behalf of Leah Wachu Waiganjo) [2021] KEELC 898 (KLR)", Case Analysis (2021). Chamber Summons dated 20/11/2020 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/898/eng@2021-11-08

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