Republic v Land Registrar, Nyandarua & Samburu Counties & another; Irungu & 7 others (Exparte)
The bottom line
#The Environment and Land Court refused to force the Land Registrar to issue land titles because the dispute over who rightfully owns the land needed a full trial, not a shortcut.
What this practically means
#Executive summary
#Key legal issues
#Whether mandamus lies to compel the Land Registrar to register leases and issue searches where the allocation of the land is disputed
No - the dispute goes beyond mere inaction and raises the legality of allocation, which cannot be resolved in judicial review
The respondents demonstrated multiple green cards opened for the suit properties, suggesting illegal or irregular allocation of public land. The court held that such disputed ownership issues require a full civil suit with oral evidence and cross-examination, not affidavit-based judicial review proceedings. Judicial review remedies cannot be used to perpetrate or legitimise illegalities.
Whether the Trans-Nzoia authority cited by the applicants was applicable
Distinguished - in that case there was no allegation of illegal allocation of public land or adverse claim
The court found the cited precedent materially different: there was no allegation of illegal or irregular allocation, no claim the land was public land, and no adverse claimant. The only ground for refusal there was a name discrepancy on the lease, unlike the present dispute over legality of title.
Whether the EACC's allegation of ongoing investigation could stand on grounds of opposition alone
No - factual allegations must be supported by affidavit evidence
The 2nd interested party filed only grounds of opposition without a replying affidavit. The court held that factual allegations placed in grounds of opposition amount to adducing evidence from the bar and found no credible evidence of the claimed investigation under the Ethics and Anti-Corruption Act.
Legal principles established
#- Judicial review is not the appropriate forum for resolving disputes over the legality of allocation of land; such disputes require a normal civil suit where evidence can be tested by cross-examination.
- Factual allegations must be placed before the court by affidavit; grounds of opposition cannot convey factual allegations.
Court orders
#- 1.The notice of motion dated November 19, 2020 is dismissed in its entirety
- 2.No order as to costs
- 3.Applicants at liberty to file a normal civil suit for vindication of their perceived rights over the suit properties
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 rules 3(1) & (3) of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Land Registrar, Nyandarua & Samburu Counties & another; Irungu & 7 others (Exparte)", Case Analysis (2022). Environment and Land Judicial Review Case E001 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13355/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.