Ragot v Sub County Land Registrar Nyando, Muhoroni, Nyakach Sub Counties & another (Miscellaneous Civil Application 3 of 2021) [2022] KEELC 3214 (KLR)
The bottom line
#The Environment and Land Court in Kisumu dismissed a landowner's challenge to a boundary determination, confirming that appeals—not judicial review—are the right remedy.
What this practically means
#Executive summary
#Key legal issues
#Whether mandamus should issue to compel production of documents and restoration of the status quo
Prayers 1 and 3 were overtaken by events; mandamus is not the remedy where a duty has been wrongfully performed
The court confirmed that the minutes, survey report and workings had been furnished to the court and the Applicant. Further, mandamus compels performance of a statutory duty, but cannot quash what has been done; where the complaint is wrongful performance, the correct remedy is certiorari or an appeal, not mandamus.
Whether the boundary dispute determination of 19th August 2020 should be quashed by certiorari
No; the boundary dispute was determined in accordance with sections 18 and 19 of the Land Registration Act and Regulation 40 of the Land Registration (General) Regulations, 2017
The surveyor's report and minutes showed parties were present or represented by agents and given an opportunity to be heard. The Registrar followed the statutory procedure and acted within his powers; judicial review does not examine merits but the fairness of the process, which was found fair and reasonable.
Whether prohibition should issue against further boundary determination
No; the exercise had been completed and any grievance lay in an appeal under Regulation 40(6), which the Applicant did not pursue
Prohibition lies only where a tribunal proceeds in excess of jurisdiction or in contravention of natural justice. Here the Registrar acted within his mandate. The surveyor found encroachment by parcel 254, and the parties ought to have invited that owner to fix the boundary rather than seek prohibition.
Whether the Applicant was given an opportunity to be heard
Yes; the Applicant was issued notice, attended or was represented, and the Registrar complied with section 4(3) and (4) of the Fair Administrative Action Act and section 87 of the Land Registration Act
The court found the Registrar took the necessary steps: notice was issued with reasons, minutes of 24th November 2020 showed hearing of parties, the surveyor's report was available to all parties, and the principles for boundary disputes were followed. The process was therefore fair, reasonable and intra vires.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision
- Mandamus compels performance of a statutory public duty, but where the complaint is wrongful performance of a duty, mandamus is the wrong remedy
- A party aggrieved by a Registrar's boundary determination must appeal to the court within thirty days under Regulation 40(6) of the Land Registration (General) Regulations, 2017
Court orders
#- 1.This Judicial Review Application is hereby dismissed with costs to the 2nd Respondent
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court/Environment and Land Court under the Law Reform Act and fair administrative action provisions; leave granted to apply for orders of mandamus, certiorari and prohibition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ragot v Sub County Land Registrar Nyando, Muhoroni, Nyakach Sub Counties & another (Miscellaneous Civil Application 3 of 2021) [2022] KEELC 3214 (KLR)", Case Analysis (2022). Judicial Review Application (Chamber Summons dated 25th November 2020; Notice of Motion dated 11th December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3214/eng@2022-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.