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ELCDismissed· [2022] KEELC 135 (KLR)

Republic v County Land Registrar, Kisumu County & 3 others (Judicial Review Application E004 of 2021) [2022] KEELC 135 (KLR)

Environment and Land Court
5 May 2022
AOAntony Ombwayo
1,140 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner can't use judicial review to fight boundary disputes with neighbours; everyone affected, including whoever placed a restriction, must be joined and heard.

What this practically means

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Executive summary

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The Applicant, registered owner of LR No Kisumu/Marera/2039, moved the Environment and Land Court at Kisumu by judicial review seeking mandamus to compel the 1st and 2nd Respondents (the land officials including the Land Registrar Kisumu) to visit and fix the boundaries of the suit property, to indicate any encroachment and the encroachers, and to remove a restriction registered over the parcel on 5/10/2020. The Applicant evidenced ownership through a search certificate, green card and sale agreement, and claimed his neighbour Henry Adiyo Otiende destroyed the euphorbia boundary, prompting a boundary dispute declared with the Registrar; survey attempts in 2017 and later were allegedly frustrated by neighbours who chased away surveyors, even hiring goons. The Respondents, though served, did not respond. The Court, applying the classic exposition of judicial review as concerned with the decision-making process rather than the merits or private rights, held that the Applicant's real grievance lay against his neighbours rather than the Registrar, who had in fact acted, and that those neighbours had not been enjoined. The Court also declined to order removal of the restriction because the green card showed it was instigated by Mary Oluoch Olwande, the initial owner, who had not been joined or heard, as required by natural justice and fair administrative action. The Court dismissed the application for failure to lay sufficient basis for the orders sought and made no order as to costs, the Respondents not having responded. Judgment delivered by Antony Ombwayo, Judge, at Kisumu on 5 May 2022.

Key legal issues

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01

Whether the application was a proper judicial review matter

Holding

It was not; the application sought to enforce private rights against alleged trespassers rather than to review the Registrar's decision-making process, and the Registrar had in fact acted

Reasoning

The Applicant admitted several attempts at survey were made but were disrupted by neighbours. His grievance was against those neighbours, not against any unfairness or omission by the Registrar. Further, the neighbours whose conduct formed the substance of the complaint were not enjoined to the proceedings. Judicial review cannot be used to litigate private rights against non-parties.

p. 2
02

Whether the restriction should be removed without notice to its instigator

Holding

No; Mary Oluoch Olwande, who instigated the restriction, was a necessary party and had to be heard first

Reasoning

Sections 76 and 77 of the Land Registration Act require notice of a restriction to affected parties. The green card and search showed the restriction was instigated by Mary Oluoch Olwande, the initial owner from whom the Applicant's sister purchased. Removing it without hearing her would adversely affect her and breach natural justice and fair administrative action.

p. 3

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision or private rights
  • A person adversely affected by an order sought, such as the party who instigated a restriction, must be joined and heard before orders are granted

Court orders

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  1. 1.The application was dismissed for failure to lay sufficient basis for the grant of the orders sought
  2. 2.No order as to costs

Authorities

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Legislation

  • Land Registration ActSection 18(2)
  • Land Registration ActSections 76 and 77
  • Fair Administrative Actions ActSection 2

Cases cited (6)

  • Chief Constable of the North Wales Police vs Evans
    [1982] 1 WLR 1155
  • Commissioner of Lands v Kunste Hotel Limited
    [1997] eKLR
  • R v. Secretary of State for Education and Science ex parte Avon County Council
    [1991] 1 ALL ER 282
  • Samuel Njoroge Gituku & 6 others v Kenya Rural Road Authority & 5 others
    [2017] eKLR
  • Maricus Otieno Okwayo vs George Owenge Aluoch
    [2017] eKLR
  • Willis Ocholla v Mary Ndege
    [2016] eKLR
Jurisdiction invoked
Judicial review jurisdiction; applicant invoked Section 18(2) of the Land Registration Act on the commitment of boundary disputes to the Land Registrar

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 County Land Registrar, Kisumu County & 3 others (Judicial Review Application E004 of 2021) [2022] KEELC 135 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/135/eng@2022-05-05

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