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ELCPartially AllowedJudicial Review Notice of Motion dated 22.07.2019 (filed 22nd July, 2019)· [2021] KEELC 1183 (KLR)

Republic v District Land Registrar, Trans Mara & another Ex parte Jackson Ayuka Nyangara [2021] KEELC 1183 (KLR)

Environment and Land Court of Kenya
27 October 2021
MKMOHAMMED KULLOW
1,973 words in judgment
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The bottom line

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Kenya's Environment and Land Court ordered the Trans Mara land registrar to register a buyer as land owner after officials ignored his claim for over 30 years.

What this practically means

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Executive summary

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By an ex-parte chamber summons dated 28 June 2019, leave was granted to the ex-parte applicant to commence judicial review proceedings against the District Land Registrar – Trans Mara. The substantive, unsigned and undated Notice of Motion sought an order of mandamus compelling the Registrar to erase the names of Daniel Ketere and Moses Lekina Naimodu from the register in respect of Trans Mara/Ololchani/89 and to register the applicant as owner, together with costs. The applicant purchased the land jointly in 1978 under a sale agreement, paid the full purchase price, and obtained a favourable determination from the Adjudication Board on 18 June 1990, which the Registrar failed to effect for over three decades without explanation. The Respondents filed grounds of opposition, contending that the application sought to direct a public officer's statutory discretion and that the applicant had not exhausted the objection avenue. The court disposed of the motion by written submissions. Applying the eight-factor mandamus test from Apotex Inc. v Canada (Attorney General) and the principles in Kenya National Examination Council v Geofrey Gathenji Njoroge, the court found a clear public legal duty under section 65 of the Land Registration Act, a clear right, satisfaction of all conditions precedent, prior demand and outright refusal, and no adequate alternative remedy. Mandamus issued, and each party was ordered to bear its own costs. The judgment contains an internal contradiction: one passage records the motion as dismissed with costs to the Interested Party before the operative grant of mandamus.

Key legal issues

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Whether an order of mandamus can issue to compel the District Land Registrar to effect registration

Holding

Yes. The Registrar had a public legal duty under section 65 of the Land Registration Act to register the ex-parte applicant, who had satisfied all conditions precedent, including a prior demand and the Registrar's refusal/delay for over 30 years.

Reasoning

The court adopted the eight-factor test for mandamus from Apotex Inc. v Canada (Attorney General) and the scope of mandamus set out in Kenya National Examination Council v Geofrey Gathenji Njoroge. It found a public legal duty owed to the applicant, a clear right, satisfaction of conditions precedent (adjudication board determination, demand on the Registrar, inquiries and a caution lodged), no adequate remedy and no equitable bar. The Registrar's 30-year refusal without reasons satisfied the requirement of express or implied refusal through unreasonable delay.

p. 3

Legal principles established

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  • An order of mandamus issues to compel performance of a public legal duty that has not been performed to the detriment of a party with a legal right to its performance
  • Where a person has become entitled to land, the Registrar shall, on application supported by the required instruments or evidence, register that person as proprietor

Court orders

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  1. 1.An Order of MANDAMUS do and is hereby issued to the DISTRICT LAND REGISTRAR – TRANSMARA to compel it to erase the names of DANIEL KETERE & MOSES LEKINA NAIMODU from the register as the registered owners of all that piece of land situate in Trans Mara District Ololchani/ Plot No. 89
  2. 2.To register JACKSON AYUKA NYANG'ARA the ex-parte Applicant in the register as the owner of all that piece of land situate in Trans Mara District Ololchani/ Plot No. 89
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Judicial review jurisdiction of the High Court under the Law Reform Act (ex-parte chamber summons for leave; order of mandamus against a public officer)

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 District Land Registrar, Trans Mara & another Ex parte Jackson Ayuka Nyangara [2021] KEELC 1183 (KLR)", Case Analysis (2021). Judicial Review Notice of Motion dated 22.07.2019 (filed 22nd July, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1183/eng@2021-10-27

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