Asili Housing Cooperative Society Ltd v District Land Registrar, Kajiado South and Central (Environment and Land Miscellaneous Application 2 of 2020) [2021] KEELC 1788 (KLR)
The bottom line
#Kenya's land registries cannot refuse to open Green Cards for titles they issued—the Kajiado court ordered the Registrar to do so for 49 parcels.
What this practically means
#Executive summary
#Key legal issues
#Whether the Land Registrar had a statutory and administrative duty to open Green Cards for titles he had issued, and whether his refusal was amenable to judicial review
The Registrar had an administrative role under the Land Registration Act, the Fair Administrative Action Act and Article 47 of the Constitution to maintain the registry and avail Green Cards; his unexplained refusal abdicated that duty and was unlawful.
Section 7(1) and (2) of the Land Registration Act requires a land registry to be maintained in each registration unit and obliges the Registrar to make information in the land registry accessible to any person on payment of the prescribed fee. Having issued titles to the applicant's members, the Registrar was bound to maintain supporting records (Green Cards). He gave no reason for refusing to open them despite receiving all relevant documents including the mother title, mutation forms and area list. That failure contravened the Land Registration Act, the Fair Administrative Action Act and Article 47.
Whether an undefended judicial review application founded on the Registrar's failure to respond should be granted
As the Respondent was duly served but neither entered appearance nor filed a replying affidavit, the averments went uncontroverted and amounted to an admission, entitling the applicant to the orders sought.
The Respondent was served with the application on 26th January 2021 and again with a mention notice, yet filed no appearance or response. The court treated the failure to controvert as an admission of the applicant's averments. On the uncontroverted material, including annexed titles and a demand letter from the applicant's advocates, the court found the failure to furnish Green Cards violated natural justice and the constitutional right to property, and that the applicant had met the threshold for mandamus.
Legal principles established
#- An order of mandamus compels the performance of a public duty imposed on a person or body by statute where that person or body has failed to perform the duty to the detriment of a party with a legal right to expect its performance
- Every person has a right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair, with reasons given, under Article 47 of the Constitution
Court orders
#- 1.The decision of the Land Registrar, Kajiado South and Central for declining to open Green Cards for the listed parcels of land (KJD/KAPUTIEI NORTH/59209 through 59219) be and is hereby quashed
- 2.An Order of Mandamus do issue compelling the Respondent to open Green Cards of ALL the Titles issued by him to the Applicant, to wit for the listed parcels of land KJD/KAPUTIEI NORTH/59209 through 59219
- Jurisdiction invoked
- Order 53 Rule 1 of the Civil Procedure Rules; Articles 40, 47(2) and 73(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v Land Registrar, Nakuru; Ngigi (Exparte Applicant) (Judicial Review Application E003 of 2023) [2024] KEELC 3931 (KLR)[2024] KEELC 3931 (KLR)20 May 2024
Cite this brief
#Cite this brief
Caselaw, "Asili Housing Cooperative Society Ltd v District Land Registrar, Kajiado South and Central (Environment and Land Miscellaneous Application 2 of 2020) [2021] KEELC 1788 (KLR)", Case Analysis (2021). ELC. Miscellaneous Application No. 2 of 2020 - JR. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1788/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.