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ELCAllowedELC JR MISC. APPL. NO. 7 OF 2020· [2021] KEELC 3586 (KLR)

Katepe Ene Nchiroine v District Land Registrar Kajiado & 2 others [2021] KEELC 3586 (KLR)

Environment and Land Court
21 April 2021
3,958 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court quashed a land registrar's boundary ruling because sloppy, unfair procedure denied a landowner her right to appeal.

What this practically means

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Executive summary

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The ex parte Applicant, owner of Kjd/Dalalekutuk/3395, sought judicial review orders of certiorari, prohibition and mandamus against the District Land Registrar Kajiado's Boundary Dispute Settlement Ruling of 9th October 2019 and the subsequent implementation summons concerning a boundary dispute with Paul T. Ole Toimasi, owner of Kjd/Dalalekutuk/23. She complained of conflicting dates on the ruling (16th August 2019, 4th October 2019 and 9th October 2019), receipt of the ruling on 13th November 2019 after the 30-day appeal window had lapsed, the Registrar's failure to respond to her advocate's clarification letter, service of implementation summons by the opposing party, and discrepancies in the maps relied upon. The Respondents filed grounds of opposition and no replying affidavit, arguing the application did not meet the judicial review threshold under section 7(2) of the Fair Administrative Action Act and offended section 13A of the Government Proceedings Act, and that the Registrar complied with sections 18 and 19 of the Land Registration Act and Regulation 40 of the Land Registration (General) Regulations 2017. The court, framing two issues (entitlement to the orders and costs), held that judicial review concerns the decision-making process rather than the merits. It found procedural impropriety and irrationality in the failure to inform the Applicant of the exact ruling date, the unanswered clarification letter and the use of a party to serve summons, breaching natural justice, section 7 of the Fair Administrative Action Act and Articles 40, 47 and 50 of the Constitution. The motion was allowed: certiorari quashed the ruling and implementation summons; prohibition restrained demarcation pending ascertainment of boundaries; mandamus compelled investigations into the map discrepancies; and costs were awarded to the ex parte Applicant.

Key legal issues

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01

Whether the Land Registrar's boundary dispute determination was procedurally fair

Holding

The determination and implementation summons were quashed for procedural impropriety and irrationality

Reasoning

The ruling bore conflicting dates (front page 16th August 2019, signature 4th October 2019, delivery 9th October 2019) and was received by the applicant on 13th November 2019, after the 30-day appeal window. The Registrar failed to respond to her advocate's clarification letter and used a party to the dispute to serve implementation summons. These post-hearing discrepancies breached natural justice, section 7 of the Fair Administrative Action Act and Articles 40, 47 and 50 of the Constitution, tainting the decision with irrationality and unfairness.

p. 4
02

Whether the court should examine the merits of the boundary determination

Holding

The court confines itself to the process, not the merits

Reasoning

Following Municipal Council of Mombasa v Republic & Umoja Consultants Ltd and Kingdom Kenya 01 Limited v District Land Registrar Narok, judicial review examines whether the decision-maker had jurisdiction, heard affected persons and considered relevant matters; the court does not act as a court of appeal over the decision or assess the sufficiency of the evidence supporting the boundary determination.

p. 4
03

Whether the Government Proceedings Act s.13A bars the application

Holding

Not applicable, as the section applies to civil suits against government

Reasoning

The applicant argued, and the court proceeded on the judicial review threshold, that section 13A of the Government Proceedings Act applies only to civil cases instituted against the government and does not bar judicial review orders against public officers exercising statutory powers.

p. 2
04

Costs

Holding

Costs awarded to the ex parte Applicant

Reasoning

Having found the motion merited, the court exercised its discretion on costs in favour of the ex parte applicant, awarding costs of the application against the respondents.

p. 5

Legal principles established

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  • Judicial review is concerned with the decision-making process and not the merits of the decision.
  • Failure to inform an aggrieved party of the exact date of a ruling so as to enable an appeal within the statutory period amounts to procedural impropriety.
  • The right of appeal is a constitutional right and its denial demonstrates lack of procedural fairness by a public officer.

Court orders

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  1. 1.An Order of Certiorari quashing the Boundary Dispute Settlement Ruling delivered on 9th October 2019 and the Boundary Dispute Implementation Summons
  2. 2.An Order of Prohibition restraining the Respondents from demarcating the land by exercising an access road between the two parcels before the boundaries of Kjd/Dalalekutuk/23 have been ascertained
  3. 3.An Order of Mandamus compelling the Respondents to conduct thorough investigations on the discrepancies in the maps and ascertain the boundaries and measurements before making corrections
  4. 4.Costs of the application awarded to the ex parte Applicant

Authorities

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Legislation

  • Land Registration Actsections 12, 14, 18, 19
  • Fair Administrative Action Actsections 6, 7, 7(2), 8
  • Government Proceedings Actsections 13A, 13A(1)
  • Land Registration (General) Regulations, 2017Regulations 40, 40(6), 40(7)
  • Constitution of Kenya, 2010Articles 40, 47, 50

Cases cited (18)

  • Commissioner of Lands v Kunste Hotel Limited
    (1997) eKLR
  • Republic v County Secretary, County Government of Kiambu & another
    (2020) eKLR
  • Republic v Dedan Kimathi University of Technology Ex parte Juma Ombolo Simon
    [2016] eKLR
  • Republic v District Land Registrar, Thika Land Office Ex parte Bushline Properties Company Limited; Moses Amoro & Francis Karanja (Interested Parties)
    (2019) eKLR
  • Republic v Secretary of the Firearms Licensing Board & 2 others Ex parte Senator Johnson Muthama
    [2018] eKLR
  • Human Rights Commission & Another v Non-Governmental Organizations Co-ordination Board & Another
    [2018] eKLR
  • County Government of Nyeri & Another v John Wachiuri T/A Githakwa Graceland & Wandumbi Bar & 50 others
    [2016] eKLR
  • Standard Chartered Financial Services Limited & 2 others v Manchester Outfitters (Suiting Division) Limited (Now Known as King Woollen Mills Limited) & 2 others
    [2016] eKLR
  • Re Estate of Said Abdalla (Deceased)
    (2018)
  • Republic v Land Registrar, Kajiado North District & 3 others
    (2018) eKLR
  • Kenya Re-Insurance Corporation v National Land Commission
    (2018) eKLR
  • Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others
    (1997) eKLR
  • Kingdom Kenya 01 Limited v The District Land Registrar, Narok & Fifteen (15) others
    [2018] eKLR
  • David Mugo t/a Manyatta Auctioneers v Republic
    Civil Appeal No. 265 of 1997 (UR)
  • Zakayo Michubu Kibwange v Lydia Kagina Japheth and 2 others
    [2014] eKLR
  • Republic v Kenya National Examinations Council ex parte Gathenji & 8 Others
    Civil Appeal No 234 of 1996
  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    Civil Appeal No.185 of 2001
  • Pastoli v Kabali District Local Government Council & Others
    (2008) 2EA 300-301
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court; Article 47 of the Constitution and section 8 of the Fair Administrative Action Act

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, "Katepe Ene Nchiroine v District Land Registrar Kajiado & 2 others [2021] KEELC 3586 (KLR)", Case Analysis (2021). ELC JR MISC. APPL. NO. 7 OF 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3586/eng@2021-04-21

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