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ELCAllowedELC Misc. Application No. 5 of 2021 (Formerly Machakos Misc. No. 61 of 2018)· [2022] KEELC 1271 (KLR)

Republic v Commissioners of Land Ex parte Kitui African Traders Ltd [2022] KEELC 1271 (KLR)

Environment and Land Court
23 February 2022
LKL. G. KIMANI
2,185 words in judgment
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The bottom line

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A Kenyan court ordered the Chief Land Registrar to issue a company a lease for a Kitui plot, 50 years after allotment, showing mandamus works.

What this practically means

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Executive summary

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The Exparte Applicant, Kitui African Traders Ltd, sought an order of mandamus compelling the Chief Land Registrar to issue a lease in respect of Plot No. 95 Kalundu Market, pursuant to a judgment of 28th June 1996 in Kitui SRMCC No. 92 of 1995 against the Municipal Council of Kitui (appeal thereagainst dismissed on 3rd June 2000). The Applicant claimed allotment of the plot in 1971 by the Plot Allocation Committee of the Commissioner of Lands through the County Council of Kitui; only issuance of the letter of allotment and title documents remained pending, obstructed by the Municipal Council's opposition. The Respondent filed grounds of objection contending the application was an abuse of process, that the allocation procedure had not crystallised to the registration stage, and that the court would be usurping the officer's discretion. The County Government of Kitui, served as a possible interested party, did not enter appearance. The court, per L. G. Kimani J, was satisfied the 1996 judgment declared the plot the Applicant's property, awarded damages for trespass and a permanent injunction, and settled all objections. It held that the Respondent, successor to the Commissioner of Lands, is under a legal duty under Section 30 of the Land Registration Act to issue the certificate of lease, and that the administrative objections raised had already been dealt with by the trial court. Relying on the Gathenji and Ongata Works decisions on the scope of mandamus, the court found the application merited and issued mandamus compelling the Chief Land Registrar to issue the lease upon payment of requisite fees, with costs to the Exparte Applicant. Judgment delivered at Kitui on 23rd February 2022.

Key legal issues

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Whether mandamus lies to compel the Chief Land Registrar to issue a lease

Holding

Yes; the Respondent is under a public legal duty following the 1996 judgment, and mandamus was issued compelling issuance of the lease upon payment of requisite fees

Reasoning

The court found the Commissioner of Lands allocated Plot No. 95 Kalundu Market to the Applicant in 1971 and only the letter of allotment remained pending. The 1996 judgment in SRMCC No. 92 of 1995 disposed of all objections raised by the Municipal Council of Kitui. Applying Section 30 of the Land Registration Act and the mandamus principles in Gathenji and Ongata Works, the court held the Registrar under a legal duty to issue the title documents and granted mandamus.

p. 3

Legal principles established

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  • Mandamus will issue where there is a specific legal right and a public duty, to compel performance of that duty
  • Under Section 30 of the Land Registration Act, the Registrar has the duty to issue a certificate of title or lease to a proprietor on request
  • A valid judgment settling objections against issuance of allotment supersedes administrative objections and binds the registrar to issue title documents

Court orders

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  1. 1.A Judicial Review Order of Mandamus compelling the Chief Land Registrar of the Republic of Kenya to issue a title document (a lease) to the exparte Applicant upon payment of the requisite fees, in respect of Plot No. 95 Kalundu Market pursuant to the judgment dated 28th June 1996 in Kitui SRMCC No. 92 of 1995
  2. 2.Costs of the application awarded to the Exparte Applicant
Jurisdiction invoked
Section 9 of the Law Reform Act and Order 53 Rule 3 of the Civil Procedure Rules, 2010 (judicial review for 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 Commissioners of Land Ex parte Kitui African Traders Ltd [2022] KEELC 1271 (KLR)", Case Analysis (2022). ELC Misc. Application No. 5 of 2021 (Formerly Machakos Misc. No. 61 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1271/eng@2022-02-23

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