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ELCPartially AllowedNot stated in the judgment (Judicial Review ex-parte Applicant Mary Wamaitha Kaittany)· [2021] KEELC 1000 (KLR)

Republic v Chief Lands Registrar; Ex Parte: Mary Wamaitha Kaittany [2021] KEELC 1000 (KLR)

Environment and Land Court
17 November 2021
EWE. K. Wabwoto
1,921 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court ordered Kenya's Chief Land Registrar to remove a stale caution on land after ignoring a formal removal application.

What this practically means

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Executive summary

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This was a judicial review application by Mary Wamaitha Kaittany, the ex-parte Applicant, seeking an order of mandamus to compel the Chief Land Registrar, the Respondent, to remove a caution placed on L.R No. 12422/318 at the instance of the National Land Commission following fraud complaints by Margaret Wairimu Magugu. The Applicant had purchased three subdivisions of the parcel and obtained the mother title pursuant to a court order in Nairobi ELC No. 355 of 2016, but could not register the subdivisions because of the caution. She argued that earlier proceedings had dismissed the fraud allegations and that a formal application for removal under Section 73 of the Land Registration Act had not been acted upon. The Respondent, though served, filed no response or submissions. The Court, per E. K. Wabwoto J, restated the mandamus principles from the Court of Appeal and English authorities, holding that mandamus issues where a public duty exists and no other appropriate remedy is available. It found that the three statutory routes for removing a caution are independent, so prior recourse to the Registrar was not a precondition. Satisfied that the Applicant had made out a case, the Court issued a writ of mandamus compelling the Chief Lands Registrar to remove the caution. Although the Applicant sought costs from the Respondent, the Court exercised its discretion under Section 27 of the Civil Procedure Act and directed each party to bear its own costs, given the Respondent's non-participation.

Key legal issues

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01

Whether the Applicant made out a case for an order of mandamus compelling removal of the caution

Holding

Yes. The caution existed, was placed by the Respondent, and despite a formal application under Section 73 of the Land Registration Act the caution had not been removed. The Respondent had a public duty to act and no other appropriate remedy was available.

Reasoning

The Court set out the principles for mandamus from the Court of Appeal and English authorities: mandamus lies where there is a specific legal right and a public duty, and no more convenient or effectual remedy. Section 73 provides three independent routes for removal of a caution. The Applicant had obtained the mother title by court order, and earlier suits had dismissed the fraud allegations underpinning the caution. A formal application to the Respondent had not resulted in removal, so mandamus issued.

p. 3
02

Who shall bear the costs of the application

Holding

Each party to bear its own costs, because the Respondent did not oppose the application and filed no response or submissions.

Reasoning

While costs ordinarily follow the event under Section 27 of the Civil Procedure Act, the Court exercised its discretion to depart from that rule since the Respondent did not resist the application, filing neither a response nor submissions despite being served and appearing at the directions hearing.

p. 3

Legal principles established

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  • An order of mandamus will issue where there is a public duty to be performed and no other appropriate remedy is available to the applicant.
  • Under Section 73 of the Land Registration Act, cautions may be removed in three independent ways - by the cautioner's withdrawal, by order of the court, or by order of the Registrar - and it is not necessary to first seek removal by the Registrar before approaching the court.
  • Costs follow the event under the proviso to Section 27 of the Civil Procedure Act, but a successful party may be denied costs for good reason.

Court orders

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  1. 1.A writ of Mandamus compelling the Chief Lands Registrar to remove the caution/caveat on Land Reference No. 12422/318 placed at the instance of the National Land Commission following complaints by one Margaret Wairimu Magugu
  2. 2.Each party to bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 53 Rule 1
  • Land Registration Act No. 3 of 2012Section 73
  • Civil Procedure Act (Cap. 21)Section 27

Cases cited (6)

  • R vs Kenya National Examination Council ex-parte Gathengi & 8 Others
    [1997] eKLR
  • Commission on Administrative Justice vs Kenya Vision 2030 Delivery Board & 2 others
    [2019] eKLR
  • Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others
  • R vs Dudsheath, ex parte, Meredith
    [1950] 2 ALL E.R. 741
  • Nairobi ELC No. 355 of 2016 Mary Wamaitha Kaittany vs Njeri Kariuki
  • Nairobi Civil Appeal No.3 of 2018
Jurisdiction invoked
Order 53 Rule 1 of the Civil Procedure Rules, 2010 (judicial review)

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 Chief Lands Registrar; Ex Parte: Mary Wamaitha Kaittany [2021] KEELC 1000 (KLR)", Case Analysis (2021). Not stated in the judgment (Judicial Review ex-parte Applicant Mary Wamaitha Kaittany). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1000/eng@2021-11-17

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