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ELCPartially AllowedJudicial Review Application E006 of 2022· [2023] KEELC 16508 (KLR)

Republic v Commissioner of Lands & another; Nguyo (Exparte Applicant); Mulwa (Interested Party)

Environment and Land Court
22 March 2023
3,814 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ordered the Machakos Land Registrar to release a land transfer form, confirming registrars must hand over registration documents on demand.

What this practically means

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Executive summary

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The Exparte Applicant, Kingi Nzioki Nguyo, sought orders of mandamus compelling the Land Registrar, Machakos to supply certified copies of the Land Control Board consent application and the transfer form that led to entry No. 4 dated 13th November 2017 in the register for Machakos/Mua Hills/203, by which his co-tenant John Mulwa Nzioki and he allegedly transferred the suit property to the Interested Party, Bernard Mutinda Mulwa. The Applicant wished to subject the documents to handwriting expert examination for use in ELC CMCC No. 4 of 2018, a pending suit seeking cancellation of the Interested Party's title on grounds of fraud. The Respondents did not oppose the application; the Interested Party opposed it, asserting the property was lawfully purchased and transferred to him. The court, applying the seven-factor test for mandamus from the Schon Noorani case, held that the Land Registrar, under Sections 9 and 10 of the Land Registration Act, owes a duty to maintain and make accessible registration documents, and having received a demand letter in June 2019 without response, must be compelled to supply the transfer form. However, the court declined mandamus in respect of the Land Control Board consent application, since such applications are lodged with the Land Control Board and the Applicant did not show the Registrar held it. The suit against the Commissioner of Lands was struck out, that office no longer existing under the 2010 Constitution. Judgment was entered against the 2nd Respondent with costs.

Key legal issues

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01

Whether the Land Registrar owes a statutory duty to supply the transfer instrument resulting in entry No. 4 in the register

Holding

Yes - under Sections 9 and 10 of the Land Registration Act the Registrar must maintain and make accessible registration documents; mandamus issued to compel supply of the transfer form

Reasoning

Section 9 obliges the Registrar to maintain documents in a secure, accessible and reliable format; Section 10 grants public access to the register. The transfer took effect upon registration, so the Registrar holds the instrument. A demand letter dated 24th June 2019 went unanswered, a reasonable time to comply elapsed, no equitable bar existed and the balance of convenience favoured grant since the document is needed for the pending fraud suit.

p. 7
02

Whether the Land Registrar can be compelled to supply the Land Control Board consent application

Holding

No - such applications are lodged with the Land Control Board, not the Registrar, and the Applicant did not show the Registrar holds the document

Reasoning

Section 8 of the Land Control Act requires applications for consent to be made to the appropriate Land Control Board. Since the Applicant did not demonstrate that the Land Registrar is in possession of the consent application, an order against the Registrar would be futile; the court declined to issue orders in vain.

p. 6
03

Whether the suit lies against the Commissioner of Lands

Holding

No - the office no longer exists under the 2010 Constitution and no claims were made against that Respondent; suit against it struck out

Reasoning

The court noted that under the 2010 Constitution the office of Commissioner of Lands no longer exists, and in any event no allegations or claims were made against the 1st Respondent, rendering the suit against that office unsustainable.

p. 8

Legal principles established

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  • A Land Registrar who maintains registration documents under Section 9 of the Land Registration Act owes a duty to avail, upon demand, the documents upon which an entry in the register was made
  • Mandamus requires demonstration of a public legal duty owed to the applicant, demand and refusal or unreasonable delay, no other adequate remedy, no equitable bar, and balance of convenience favouring grant

Court orders

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  1. 1.Suit as against the 1st Respondent (Commissioner of Lands) struck out
  2. 2.An order of Mandamus issued to the Land Registrar Machakos County compelling supply of a certified copy of the duly filled out form for transfer of land for Land Parcel Number Machakos/Mua Hills/203 leading to entry No. 4 dated 13th November 2017
  3. 3.Costs of the suit borne by the 2nd Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(3)(f), 35, 48
  • Land Registration ActSections 8, 9, 10, 12, 37, 43
  • Land Control Act Cap 302 Laws of KenyaSection 8

Cases cited (5)

  • Republic v. Kenya National Examinations Council Exparte Gathenji & Others
    [1997] eKLR

    Mandamus compels performance of a public duty imposed by statute where the person has failed to perform

  • Shah v. Attorney General (NO 3)
    [1970] EA 543, 549

    Mandamus is not issued as a matter of course; only where a specific act required by law has been omitted

  • Republic v. Principal Secretary, Ministry of Internal Security & Another Exparte Schon Noorani & Another
    [2018] eKLR

    Seven factors that must be demonstrated for a writ of mandamus to issue

  • Apotex Inc v. Canada (Attorney General)
    1993 Can L11 3004 (F.C.A) [1994] I.F.C 742 (C.A)

    Adopted in setting out the seven factors for mandamus

  • Dragan v. Canada (Minister of Citizenship and Immigration
    2003 FCT 211 (Can L11) [2003] 4. F. C 189 (T.D)

    Adopted in setting out the seven factors for mandamus

Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court; reliefs under Article 23(3)(f) of the Constitution

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; Nguyo (Exparte Applicant); Mulwa (Interested Party)", Case Analysis (2023). Judicial Review Application E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16508/eng@2023-03-22

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