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ELCPartially AllowedJudicial Review E004 of 2021· [2022] KEELC 15291 (KLR)

Republic v Land Registrar Kitui County & 2 others; Kisumba (Exparte); Muo (Interested Party)

Environment and Land Court
8 December 2022
LKL. G. Kimani
4,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The ex parte applicant, administratrix of the estate of the registered proprietor of Ikutha/Mbitini/288 and purchaser of parcels 50 and 46, sought judicial review orders of prohibition against the Land Registrar and District Surveyor Kitui from conducting boundary verification of ten parcels in violation of the Constitution, the Fair Administrative Actions Act and natural justice, and mandamus compelling the Registrar to supply adjudication records under Article 35. The Respondents argued the court lacked jurisdiction over boundary disputes under section 18(2) of the Land Registration Act and that the application was premature; the interested party asserted the exercise followed due process and was confined to parcels 202, 50 and 65. The court found the October 2021 notice adequate because an earlier August 2021 letter had disclosed the intended exercise, and that the exercise was in fact carried out, boundaries verified and a report forwarded to the Registrar. Since prohibition is prospective only and cannot quash a completed decision, prayer 1 was dismissed. On mandamus, the court held that Sections 7(2), 10 and 34 of the Land Registration Act, Article 35 of the Constitution and the Access to Information Act imposed a duty on the Registrar to supply records in his custody on request, rejecting the argument that the applicant should apply to the Director of Adjudication. Mandamus issued; each party was ordered to bear its own costs.

Key legal issues

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01

Adequacy of notice of boundary verification

Holding

Notice was adequate; the 14th October 2021 letter followed an earlier notice of 5th August 2021, and the exercise was restricted to parcels 202, 50 and 65

Reasoning

The court held the October notice had to be read against the earlier August letter which disclosed the intended exercise, giving the applicant time to instruct an advocate. The claim that the notice did not specify the disputed parcels was found untrue, as the letters identified parcels 202, 50 and 65.

p. 5
02

Whether prohibition could issue

Holding

No; the exercise had already been carried out and prohibition is prospective only

Reasoning

Relying on Kenya National Examination Council v Republic ex parte Gathenji Njoroge, the court found the boundary verification had proceeded, boundaries verified and a report forwarded to the Registrar. Prohibition cannot quash a completed decision; it only prevents a contemplated decision.

p. 6
03

Entitlement to mandamus for adjudication records

Holding

Mandamus issued; the 1st Respondent holds records and documents with a legal duty to supply them on request

Reasoning

Sections 7(2) and 10 of the Land Registration Act and Section 34 oblige the Registrar to make registry information and search copies accessible; Article 35 and the Access to Information Act reinforce the duty. The court rejected the argument that the applicant should apply to the Director of Adjudication for records in the Registrar's custody.

p. 9

Legal principles established

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  • Prohibition is prospective only and cannot quash a decision already made
  • A judicial review applicant must show illegality, irrationality or procedural impropriety
  • A Registrar has a statutory duty to make registry information accessible to the public on payment of the prescribed fee

Court orders

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  1. 1.Prayer No. 1 of the Notice of Motion dated 15th November 2021 dismissed
  2. 2.Orders of mandamus issued compelling the 1st Respondent to produce or supply to the ex parte applicant the adjudication records of Land Parcel Ikutha/Mbitini/288, 49, 46 and 50 under Article 35 of the Constitution
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 35, 47, 50, 165(6)(7)
  • Civil Procedure RulesOrder 53 Rule 1(1)(2)(3)
  • Law Reform ActSection 8(2)
  • Judicature ActSection 3
  • Fair Administrative Actions ActSections 4(3), 7(2), 9, 10
  • Land Registration Act No. 3 of 2012Sections 7(2), 10, 14-23, 18(2), 19, 34
  • Survey ActSection 23(2)
  • Access to Information Act 2016Sections 4, 5, 8, 9
  • Land Adjudication ActSections 27, 28, 29

Cases cited (11)

  • Reg v. Secretary of State for the Home Department, Ex parte Doody
    (1994) A.C 531

    Principles of fair administrative action

  • Republic v Maseno University Staff Disciplinary Committee and Another
    (2009) eKLR

    Principles of procedural fairness

  • Kenya National Examination Council v Republic, Ex-parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR

    Prohibition looks to the future; cannot quash a decision already made

  • Amota Nyasae Nyang'era v. Public Service Commission of Kenya & 2 others
    (2013) eKLR

    Prohibition looks to the future

  • Van Huyssteen v. Minister of Environmental Affairs and Tourism and Others
    (1995) 4 L.R.C 340

    Entitlement to information/records

  • Kithome Mwera Malili v. Munyoki Mwera & others
    (2019) eKLR

    Duty to supply registry records

  • Azzuri Limited v. Pink Properties Limited
    (2018) eKLR

    Boundary disputes fall within the Land Registrar's mandate

  • George Kamau Macharia & Dexka Limited
    (2019) eKLR

    Boundary disputes for land with general boundaries are for the Land Registrar

  • Speaker of National Assembly v Karume
    (1992) KLR 21

    Where a clear procedure for redress is prescribed it must be strictly followed

  • Pastoli v Kabale District Local Government Council & Others
    [2008] 2 EA

    Requirements for judicial review: illegality, irrationality, procedural impropriety

  • Nairobi Law Monthly v Kenya Electricity Generating Company & 2 Others

    State's constitutional obligation to provide information under Article 35(1)(a)

Jurisdiction invoked
Article 165(6)(7) of the Constitution; Order 53 Rule 1(1)(2)(3) Civil Procedure Rules; Section 8(2) Law Reform Act; Sections 7, 9 and 10 Fair Administrative Actions 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 Land Registrar Kitui County & 2 others; Kisumba (Exparte); Muo (Interested Party)", Case Analysis (2022). Judicial Review E004 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15291/eng@2022-12-08

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