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ELCAllowedChamber Summons Application dated 2nd October, 2019· [2021] KEELC 3171 (KLR)

Geoffrey Kanja Mugo & 2 others v District Land Registrar Kajiado District Registry; James Kariuki Karanji (Interested Party) [2021] KEELC 3171 (KLR)

Environment and Land Court
20 May 2021
COChristine Ochieng
912 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 allowed landowners to sue the Land Registrar for refusing to remove a caution even after the cautioner said it had no interest.

What this practically means

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Executive summary

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This was a Chamber Summons application dated 2nd October 2019 under Sections 1A, 3A and 3B of the Civil Procedure Act, Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, in which the Ex Parte Applicants sought leave to apply for an order of Mandamus compelling the Respondent (the land registry) to remove restriction entries on parcel Kajiado/Olooitikoshi/Kitengela 2088, the mother title to LR No. Kajiado/Olooitikoshi/Kitengela 31732, occasioned by a caution placed by the Interested Party. The applicants, registered proprietors of the suit parcel since 5th October 2010, discovered the restriction when seeking to subdivide. The Interested Party had itself, by a letter dated 2nd May 2017, confirmed it had no interest in the land and requested the caution's removal, yet the Respondent retained the caution without explanation. The Respondent was granted leave to respond but filed nothing. Adopting the test laid down by Waki, J in Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others - that leave is granted where, on the material available and without depth of inquiry, there is an arguable case fit for further investigation - Justice Christine Ochieng found no reason for the Respondent's inaction and held the applicants had an arguable case. Leave to commence judicial review proceedings of Mandamus was granted, returnable within 21 days, with costs in the cause. The judgment delivered virtually at Kajiado on 20th May 2021.

Key legal issues

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Whether the applicant met the threshold for leave to apply for judicial review (mandamus)

Holding

Leave was granted; the applicants demonstrated an arguable case that the Respondent failed to perform his public duty by not removing the caution despite the Interested Party's request.

Reasoning

Applying the test in Republic vs. County Council of Kwale Ex Parte Kondo, the court need only find an arguable case fit for further investigation, not decide the matter in depth. The Interested Party's letter of 2nd May 2017 confirmed it had no interest in the parcel and asked the Respondent to remove the caution; the Respondent, though served, filed no response and gave no reason for retaining the caution. The certificate of title showed the applicants as registered proprietors, warranting leave.

p. 2

Legal principles established

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  • Leave for judicial review is granted where, without going into the matter in depth, there is an arguable case fit for further investigation at a full inter partes hearing.

Court orders

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  1. 1.Leave granted to the Ex parte Applicant to commence judicial review proceedings of Mandamus within 21 days from the date of the order
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A and 3B
  • Law Reform ActSections 8 and 9
  • Civil Procedure RulesOrder 53 Rules 1(1)(2) and 3(1)

Cases cited (1)

  • Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others
    Mombasa HCMCA No. 384 of 1996
Jurisdiction invoked
Sections 8 & 9 of the Law Reform Act; Sections 1A, 3A and 3B of the Civil Procedure Act; Order 53 Rules 1(1)(2) and 3(1) of the 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, "Geoffrey Kanja Mugo & 2 others v District Land Registrar Kajiado District Registry; James Kariuki Karanji (Interested Party) [2021] KEELC 3171 (KLR)", Case Analysis (2021). Chamber Summons Application dated 2nd October, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3171/eng@2021-05-20

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