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ELCDismissedChamber Summons application dated 29th April 2023

Muriithi v Nyeri County Land Registrar (Miscellaneous Judicial Review E001 of 2023) [2024] KEELC 25 (KLR)

Environment and Land Court
19 January 2024
1,508 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Nyeri ruled that only a registered proprietor can ask the Land Registrar to reconstruct a lost title, and the buyer hadn't completed his purchase.

What this practically means

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Executive summary

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By a Chamber Summons dated 29th April 2023, Joseph Wambugu Muriithi, the Ex-parte Applicant, sought orders of mandamus to compel the Nyeri County Land Registrar to reconstruct the land register for parcel No. Nyeri/Municipality Block 1/1257 and to register him as proprietor. He relied on a sale agreement of 17th July 2008 with Duncan Ndei Muhoro, asserting that the vendor had become uncooperative and that the Respondent could not trace the register, despite his having published the alleged loss in the Kenya Gazette as advised. The Respondent opposed the application, contending that under Section 33 of the Land Registration Act and Regulation 28 of the Land Registration (General) Regulations 2017, only a registered proprietor may apply for reconstruction, and that the Applicant was neither the registered proprietor nor had he produced sufficient documentation proving the loss. The court held that the Applicant bore the burden of proving the facts asserted, per Section 107(1) of the Evidence Act as explained in Evans Nyakwana v Cleophas Bwana Ongaro, and that no statutory declaration or gazette notice evidencing loss had been produced. The sale agreement showed the purchase price largely unpaid, no executed transfer documents, and that the Applicant had never seen the certificate of title; the vendor was also not joined. Applying the test in Republic v Public Procurement Administrative Review Board Exparte Rongo University, the court found no illegality, irrationality or procedural impropriety in the Respondent's refusal and dismissed the application with costs to the Respondent on 19th January 2024.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent's refusal to reconstruct the land register for parcel No. Nyeri/Municipality Block 1/1257 was tainted with illegality, irrationality and/or procedural impropriety
  2. 2.Whether an order of mandamus should issue to compel the Respondent to reconstruct the land register and register the Applicant as proprietor

Key legal issues

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01

Who may apply for reconstruction of a lost or destroyed land register/certificate

Holding

Only the registered proprietor may apply; the Applicant, being unregistered, could not invoke Section 33 of the Land Registration Act

Reasoning

Section 33 of the Land Registration Act permits the proprietor to apply for a duplicate certificate where it is lost or destroyed, and requires a statutory declaration by all registered proprietors. The court found no evidence of loss or destruction, no statutory declaration, and no gazette notice of the loss. The Applicant was not the registered proprietor and the Respondent therefore acted lawfully in refusing to reconstruct the register.

p. 3
02

Whether the Applicant discharged the burden of proof

Holding

No - the Applicant failed to prove loss of the certificate, payment of the purchase price, or execution of a transfer

Reasoning

The court examined the sale agreement and found the purchase price largely unpaid (Kshs. 865,847 outstanding), no executed transfer documents, and no copy of the certificate annexed. The Applicant had never seen the certificate of title. Relying on Evans Nyakwana v Cleophas Bwana Ongaro and Section 107(1) of the Evidence Act, the court held the Applicant failed to prove the facts asserted.

p. 3
03

Whether mandamus should issue against the Respondent

Holding

No - the Respondent's refusal was not tainted with illegality, irrationality or procedural impropriety

Reasoning

The grant of certiorari, mandamus and prohibition is discretionary and requires a reasonable basis justifying the orders. The Applicant had not complied with statutory requirements, and the vendor, whose cooperation was disputed, was not joined to accord both parties a fair hearing. The Respondent's refusal to act was therefore lawful and the application failed.

p. 4

Legal principles established

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  • The legal burden of proof lies on the party who invokes the aid of the law and asserts the affirmative of the issue, per Section 107(1) of the Evidence Act
  • An applicant for judicial review must show that the decision or act complained of is tainted with illegality, irrationality and/or procedural impropriety
  • An application for reconstruction of a lost or destroyed register or certificate under Section 33 of the Land Registration Act must be made by the registered proprietor, supported by a statutory declaration and evidence of loss

Court orders

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  1. 1.The Chamber Summons application dated 29th April 2023 is dismissed with costs to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

NU
majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction over mandamus under the Law Reform Act / fair administrative action against the Land Registrar (not expressly stated in the judgment)

Relief refused

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Order of mandamus to compel the Respondent to reconstruct the land register for parcel No. Nyeri/Municipality Block 1/1257

Applicant failed to comply with statutory requirements for reconstruction; no evidence of loss or destruction of the certificate or of statutory declaration/publication

p. 4

Order of mandamus to compel the Respondent to register the Applicant as proprietor of the parcel

Applicant is not the registered proprietor; sale agreement shows purchase price unpaid and no transfer executed; vendor not enjoined

p. 4

Costs

Costs to the Respondent - the application was dismissed with costs to the Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It follows that I was unable to find any iota of merit in the Chamber Summons application dated 29th April 2023. I dismiss the same with costs to the Respondent.
p. 4Final orders - dismissal
in order to succeed in an application for judicial review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and /or procedural impropriety.
p. 4Threshold for judicial review
The grant of the orders of certiorari, mandamus and prohibition is discretionary.
p. 4Discretionary nature of judicial review orders
such an application ought to be made by the registered proprietor of the land where the certificate is either lost or destroyed.
p. 3Standing to apply for reconstruction of register
There was no evidence of any transfer documents executed between the Applicant and the alleged Vendor and no transfer of the property has been done.
p. 4Failure to prove transfer

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, "Muriithi v Nyeri County Land Registrar (Miscellaneous Judicial Review E001 of 2023) [2024] KEELC 25 (KLR)", Case Analysis (2024). Chamber Summons application dated 29th April 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/25/eng@2024-01-19

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