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ELCAllowedNot stated in the judgment as provided· [2022] KEELC 879 (KLR)

Republic v Director of Survey & another Exparte Abdulmanan Mohamed Omar & 2 others; Kilifi Land Registrar (Interested Party) [2022] KEELC 879 (KLR)

Environment and Land Court
9 March 2022
MOM.A. ODENY
1,851 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court ordered the Director of Surveys to add a missing plot to the official map, ruling that practical objections cannot excuse a statutory duty.

What this practically means

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Executive summary

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The Ex-parte Applicants, whose late father Mohammed Shee Omar was allotted Plot Number Kilifi/Jimba/1145 by the Settlement Fund Trustees in 2000 and obtained a title in 2001, sought an order of mandamus compelling the Director of Surveys to amend the Registry Index Map Sheet No. 12 for the Kilifi/Jimba registration section to include the plot, which is physically in existence and occupied by the Applicants but does not appear on the RIM. The application, canvassed by written submissions, was opposed by the Respondents and the Interested Party through a Replying Affidavit of the Malindi District Surveyor and Grounds of Opposition. The Survey office admitted the plot was omitted from the RIM but argued that an existing Survey Plan (F/R 133/46 of 1976) would be interfered with and that affected registered owners would have to be notified, relying on Section 33 of the Survey Act and authorities on the prerequisites for mandamus, including the requirement of a refusal to perform a statutory duty. The court applied the Gathenji framework on the scope of mandamus and the Municipal Council of Mombasa exposition of the purpose of judicial review. It found ownership undisputed, the omission admitted, and the Director under a statutory duty to authenticate and rectify survey plans; notification of affected parties is part of that mandate, not a reason to decline performance. The court granted the mandamus in the terms sought, requiring the Director to act following laid-down procedures. The application was allowed as prayed, with costs provided for. Delivered at Malindi on 9 March 2022 by M.A. Odeny, J.

Key legal issues

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01

Whether the threshold for mandamus was met

Holding

Yes. The Director of Surveys is under a statutory duty to authenticate survey plans and may amend/rectify the RIM under Section 33 of the Survey Act; the Respondent admitted the suit plot is missing from the RIM, ownership is undisputed, and the existence of other affected parties is part of the Respondent's mandate, not a ground for refusal.

Reasoning

The court confined itself to the judicial review question of legality and duty rather than merits. Ownership of the suit plot was undisputed and a title had issued in 2001, yet the plot does not appear on the RIM. The Director admitted he is mandated to carry out such amendments but resisted on the basis of an existing Survey Plan and the need to notify affected parties. The court held that notification of affected parties is part of the statutory mandate and cannot excuse inaction. Mandamus issues to compel performance of the duty per the laid-down procedures.

p. 4

Legal principles established

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  • A person seeking mandamus must show that the act sought to be compelled is a duty the respondent is bound to perform at common law or by statute, and where the respondent admits the duty and the factual predicate, mandamus will issue notwithstanding the respondent's practical objections, which fall within its own mandate.

Court orders

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  1. 1.An order of mandamus to issue against the Director of Surveys compelling him, by himself, his servants, agents and persons working under him, to amend the survey record of the Register Index Map Sheet No. 12 for the Kilifi/Jimba registration section and include Plot Number Kilifi/Jimba/1145 therein, following the laid down procedures and processes

Authorities

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Legislation

  • Survey ActSection 33
  • Civil Procedure RulesOrder 21 [1]

Cases cited (5)

  • Republic v Director of Surveys & another Ex parte Seven Island Watamu Limited; Watamu Mens Friday Limited & another (Interested Parties)
    [2021] eKLR
  • Republic v Principal Secretary, Ministry of Internal Security & another Ex-parte Schon Noorani & another
    [2018] eKLR
  • Republic v KNEC Ex parte Gathenji & others
    Civil Appeal No. 266 of 1996
  • Kenya National Examination Council –v- Geofrey Gathenji Njoroge & 9 others
    Civil Appeal No. 266 of 1996
  • Municipal Council of Mombasa Vs Republic Umoja Consultants Ltd
    Nairobi Civil Appeal No.185 of 2007 (2002) eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court (Environment and Land Court) under leave granted for an order of mandamus

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 Director of Survey & another Exparte Abdulmanan Mohamed Omar & 2 others; Kilifi Land Registrar (Interested Party) [2022] KEELC 879 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/879/eng@2022-03-09

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