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ELCDismissedEnvironment and Land Judicial Review Case E3 of 2021· [2023] KEELC 17298 (KLR)

Republic v Land Registrar, Nakuru Land Registry; Kimari & 2 others (Exparte Applicants) (Administrators of the Estate of the Late Kenneth Kimari Kahura)

Environment and Land Court
11 May 2023
FNFM Njoroge
3,231 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 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 applicants, administrators of the estate of the late Kenneth Kimari Kahura, sought an order of mandamus compelling the Land Registrar, Nakuru, to remove restrictions registered against land parcel Nakuru Municipality Block 5/294, which forms part of the deceased's estate. They contended that despite formal applications and numerous letters to the Registrar and the Ministry of Lands, the restrictions were neither explained nor lifted, violating their right to fair administrative action under Article 47 and the rules of natural justice. The respondent opposed, arguing the applicants had not exhausted the procedure under Section 78 of the Land Registration Act, which requires affected parties to be heard before a restriction is removed, and that the court was not the proper forum. The court framed a single issue: whether mandamus should issue to remove the restrictions. Applying the judicial review principles in Municipal Council of Mombasa and the mandamus principles in Kenya National Examinations Council v Republic Ex Parte Gathenji, the court held that the applicants bore the burden of proving they had lodged an application for removal which the Registrar declined; the annexed application lacked receipt stamps, presentation book number and fee endorsements, and no particular restriction was targeted - a fatal flaw. Relying on Muthinja and Mutanga Tea, the court also held the statutory mechanism had to be exhausted first. The substantive notice of motion dated March 29, 2021 was dismissed with no order as to costs.

Key legal issues

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01

Whether mandamus should issue to compel the Land Registrar to remove restrictions on the suit property

Holding

No - the applicants failed to establish a factual matrix supporting mandamus; they did not prove the application for removal was lodged and rejected, and no particular restriction was targeted

Reasoning

The court found the application fatally defective because it did not target any particular restriction. The applicants bore the burden of proving they applied to the Land Registrar and were declined; the annexed application lacked receipt stamps, presentation book number and fee endorsements, so lodgement was unproven. The statutory remedy under Section 78 of the Land Registration Act had not been exhausted.

p. 6
02

Exhaustion of statutory remedies under Section 78 of the Land Registration Act

Holding

The respondent's objection on exhaustion of remedies was not idle; applicants had to first exploit the statutory mechanism

Reasoning

Section 78 provides a mechanism for removal of restrictions by the Registrar after hearing affected parties, or by the court on application of an affected proprietor. The court, relying on Muthinja and Mutanga Tea, held that where a statute prescribes a dispute-resolution mechanism, it must be exhausted first; failure means jurisdiction is not properly invoked.

p. 5

Legal principles established

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  • An applicant must exhaust a statutory dispute-resolution mechanism before invoking the court's jurisdiction
  • Mandamus compels performance of a public duty imposed by statute where the duty-holder has failed to perform it to the detriment of a party with a legal right
  • He who alleges must prove (Section 107, Evidence Act)

Court orders

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  1. 1.The substantive Judicial Review notice of motion dated March 29, 2021 is hereby dismissed
  2. 2.There shall be no order as to costs

Authorities

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Legislation

  • Law Reform ActSections 8(2), (4), 9
  • Fair Administrative Action ActSections 9(1) and 11
  • Civil Procedure RulesOrder 53 Rule 3
  • Land Registration Act, 2012Sections 76, 77, 78(1) & (2)
  • Constitution of Kenya, 2010Articles 47 and 159
  • Evidence ActSection 107

Cases cited (9)

  • Republic vs Kenya National Examinations Council ex parte Gathenji & 8 others
    Civil Appeal Number 234 of 1996

    Scope and efficacy of orders of mandamus

  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    Civil Appeal Number 185 of 2001

    Purpose of judicial review - process, not merits

  • Jane Wanjiru Nyota & 2 others vs Land Registrar, Kajiado County, & another
    [2020] eKLR
  • Daniel Piranto Ole Nchani v Deputy County Commissioner Kajiado & 3 Others Ex parte Daniel Piranto Ole Nchani
    [2019] eKLR
  • Mwangi Rukwaro & another v Land Registrar, Nyeri
    [2019] eKLR
  • David Oloo Onyango v Attorney General
    [1989] eKLR
  • Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR

    Scope and efficacy of mandamus

  • Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others
    [2015] eKLR

    Exhaustion of alternative dispute resolution mechanisms

  • Mutanga Tea & Coffee Company Ltd v Shikara Limited & another
    [2015] eKLR

    Requirement to resort to statutory dispute-resolution mechanisms first

Jurisdiction invoked
Sections 8, 9 of the Law Reform Act; Sections 9(1) and 11 of the Fair Administrative Action Act; Order 53 Rule 3 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v Land Registrar, Nakuru Land Registry; Kimari & 2 others (Exparte Applicants) (Administrators of the Estate of the Late Kenneth Kimari Kahura)", Case Analysis (2023). Environment and Land Judicial Review Case E3 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17298/eng@2023-05-11

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