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ELCAllowed· [2022] KEELC 3650 (KLR)

Republic v Commissioner of Lands & another; Mulwa (Interested Party); Nguyo (Exparte) (Judicial Review Application 27 of 2020) [2022] KEELC 3650 (KLR)

Environment and Land Court
18 May 2022
ANA. Nyukuri
1,022 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a landowner to force the Land Registrar to hand over transfer documents needed to prove a suspected fraudulent land transaction.

What this practically means

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Executive summary

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The ex parte applicant, registered as tenant in common with John Mulwa Nzioki over parcel Machakos/Mua Hills/203, applied by chamber summons dated July 23, 2020 for leave to apply for judicial review orders of mandamus to compel the Land Registrar, Machakos County to supply certified copies of the Land Control Board consent application and the transfer form that produced entry No 4 in the register, dated November 13, 2017, transferring interest to Bernard Mulwa Nzioki. The applicant alleged the transfer was fraudulent, had already filed Machakos ELC CMCC No 4 of 2018 seeking cancellation of title on account of fraud, and intended to subject the Registrar's original documents to handwriting and fingerprint expert examination in support of that pending suit. The application, anchored on sections 1A, 1B and 3A of the Civil Procedure Act, Order 53 of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act and sections 9 and 10 of the Land Registration Act, was canvassed by written submissions. Relying on Hydro Waterwell (K) Limited v National Water Conservation & Pipeline Corporation, the court held that the leave stage serves to filter out frivolous applications. Finding that the Land Registrar is presumed to have custody of all documents resulting in a new register entry, the court held the applicant had established a prima facie claim against the 2nd respondent and granted leave. The applicant was directed to file the substantive motion within 21 days, with costs of the application to abide the determination of that motion.

Key legal issues

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Whether leave should be granted to apply for judicial review orders of mandamus against the Land Registrar

Holding

Leave was granted; the applicant demonstrated a prima facie claim that the Land Registrar holds the original Land Control Board consent application and transfer form which led to entry No 4 in the register, and these are needed for handwriting/fingerprint expert scrutiny in the pending suit.

Reasoning

The court applied Order 53 rule 1 of the Civil Procedure Rules, noting that no application for mandamus may be made without leave. At the leave stage the applicant need only show a fit case for consideration. The applicant had filed Machakos ELC CMCC No 4 of 2018 alleging fraudulent transfer of his land and sought the Registrar's documents for expert examination. The court held the Registrar presumed to have custody of documents resulting in register entries and found a prima facie claim.

p. 3

Legal principles established

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  • The purpose of leave for judicial review is to eliminate frivolous applications at an early stage and allow only applications fit for consideration to proceed to substantive hearing.
  • The Land Registrar is presumed to have custody of all documents that result in a new entry in the register.

Court orders

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  1. 1.Leave granted to the ex parte applicant to apply for orders of mandamus to issue to the Land Registrar, Machakos County to supply certified copies of the duly filed application for consent of the Land Control Board to transfer land parcel registration number MACHAKOS/MUA HILLS/203, allegedly executed by Kingi Nzioki Nguyo and John Mulwa Nzioki in favour of Bernard Mulwa Nzioki, which application led to entry No 4 in the register
  2. 2.Leave granted to apply for mandamus compelling supply of a certified copy of the duly filled out form for transfer of the said land parcel which led to the disposition of interest exhibited as entry no 4 dated November 13, 2017
  3. 3.The ex parte applicant to file the substantive motion in 21 days of the ruling
  4. 4.Costs of the application to abide the determination of the substantive motion

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 53 rule 1(1) and (2)
  • Law Reform ActSections 8 and 9
  • Land Registration ActSections 9 and 10

Cases cited (1)

  • Hydro Waterwell (K) Limited v National Water Conservation & Pipeline Corporation
    (2019) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Order 53 of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act and sections 9 and 10 of the Land Registration 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, "Republic v Commissioner of Lands & another; Mulwa (Interested Party); Nguyo (Exparte) (Judicial Review Application 27 of 2020) [2022] KEELC 3650 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3650/eng@2022-05-18

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