Republic v County Land Registrar, Makueni Lands Registry Ex-Parte Philes Mwikali Kioko & 2 others [2021] KEELC 2085 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered the Makueni land registrar to reconstruct a lost land record so a family could inherit their land.
What this practically means
#Executive summary
#Key legal issues
#Whether mandamus lies to compel the Registrar to reconstruct a lost green card
Mandamus issued because the register was lost in the Registrar's custody and the Applicants, not being registered proprietors, could not invoke the Section 33(1)-(3)/Regulation 28 procedure reserved for registered proprietors.
The court read Section 33(5) of the Land Registration Act as conferring a duty on the Registrar to reconstruct lost registers after inquiry and gazette notice. Since the loss was admitted by the Respondent and the Applicants were administrators, not proprietors, the statutory procedure advanced by the Respondent did not apply. A valid succession court order required the parcel to revert, and the Registrar's inaction defeated that order, warranting mandamus.
Whether the Applicants were obliged to exhaust Regulation 28 of the Land Registration (General) Regulations, 2017
No - Regulation 28 applies to a person claiming to be a registered proprietor, which the Applicants are not.
The Respondent argued that reconstruction had a prescribed statutory procedure which had to be strictly followed. The court accepted the Ex parte Applicants' submission that Regulation 28 is framed for registered proprietors, whereas the Applicants are administrators of the estate of the original owner, and the register was lost while in the Registrar's custody. The court also noted the procedure is permissive ('may apply') rather than mandatory.
Legal principles established
#- The Registrar, not the party seeking reconstruction, is the custodian of land registers, and where the register is lost in the Registrar's custody, a non-proprietor cannot be compelled to follow the reconstruction procedure applicable to registered proprietors.
- Court orders must be obeyed and a public officer unwilling to perform a statutory duty may be compelled by mandamus.
Court orders
#- 1.An order of mandamus compelling the County Land Registrar, Makueni Lands Registry to reconstruct the green card and/or the title in respect of Land Parcel Number MAKUENI/UNOA/143 and subsequently comply with the orders in Makueni High Court Succession Cause No. 444 of 2017 issued on 24/09/2019
- 2.Costs of the application provided for
- Jurisdiction invoked
- Order 53 Rule 3(a) of the Civil Procedure Rules, 2010 (judicial review for mandamus)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Land Registrar, Makueni Lands Registry Ex-Parte Philes Mwikali Kioko & 2 others [2021] KEELC 2085 (KLR)", Case Analysis (2021). ELC Civil Misc Appl No. E001 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2085/eng@2021-09-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.