Republic v Chief Land Registrar, Nairobi & another; Criticos & another (Exparte Applicants) (Judicial Review Miscellaneous Application E011 of 2023) [2024] KEELC 1705 (KLR)
The bottom line
#Kenya's High Court-registered Environment and Land Court ordered the Chief Land Registrar to issue Criticos and Mama Ngina Kenyatta their title deed within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Competence of the application for wrong statutory provisions cited
The invocation of Sections 26 and 30 of the Land Registration Act, 2012 does not invalidate the application; citing wrong provisions is a curable technicality under Article 159(2)(d) of the Constitution
The court relied on the Supreme Court's dictum in Moses Mwicigi that procedure is the handmaiden of justice and that Article 159(2)(d) requires justice be administered without undue regard to procedural technicalities. It further noted Order 51 Rule 10 of the Civil Procedure Rules provides that no application shall be defeated on a technicality. The objection was therefore technical and procedural and could not deprive the applicants of a determination on the merits.
Competence for want of a supporting affidavit by the co-applicant
The application is competent; in judicial review proceedings the statement of facts and verifying affidavit are the critical documents, and joint proprietors may verify facts on behalf of each other
Citing Commissioner General, Kenya Revenue Authority through Republic v Silvano Onema Owaki, the court held the verifying affidavit is what carries evidential value in judicial review. The first applicant swore a verifying affidavit stating facts within his knowledge, the property is registered in the joint names of both applicants, and judicial review proceedings under the Law Reform Act and FAAA are not impacted by Order 1 Rule 13 requiring written authority. The objection was misconceived.
Whether the suit property was surrendered to the Government
No surrender was established; contention unsupported by evidence cannot constitute surrender in law, which requires a duly executed, consensual surrender instrument
Relying on the Supreme Court's exposition in Fanikiwa Limited v Sirikwa Squatters Group on the consensual nature of surrender, the court held that where a registered owner desires to surrender land, a surrender instrument stipulating the purpose and executed by the owner is required. The respondents produced no such instrument; the reference to the property as a remainder and the entry of 21st September 2017 did not evidence a lawful surrender.
Entitlement to mandamus
The 1st Respondent's unexplained failure to issue and release the certificate of title constituted dereliction of statutory duty justifying mandamus
Applying Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge and Shah v Attorney General (No. 3), the court found the 1st Respondent had a public duty, under Sections 26 and 30 of the Land Registration Act, to issue the certificate of title once the other sub-divisions had been titled. He supplied no reason for the failure, contrary to Articles 47 and 50 of the Constitution and the Fair Administrative Action Act, and treated the applicants with gross impunity. Mandamus was warranted.
Legal principles established
#- Failure to cite or implead the correct statutory provisions anchoring the relief sought does not per se vitiate an application; it is a technicality disregarded under Article 159(2)(d)
- Surrender of land can only be established from a duly executed surrender instrument executed by the registered owner
- A registered owner who surrenders a mother title for sub-division is entitled to be issued with certificates of title for all resultant sub-divisions unless there is lawful basis to the contrary
- A public officer who fails to act on a statutory duty may be compelled by mandamus; a state officer is bound by Articles 10, 47, 73, 74 and 232 of the Constitution
Court orders
#- 1.The Notice of Motion Application dated 23rd December 2023 is allowed and an order of Mandamus granted as prayed in terms of prayer (a)
- 2.The 1st Respondent ordered to process, execute and engross the certificates of title in respect of the suit property and release the same to the Ex-parte Applicants within thirty (30) days from the date of the judgment, without fail
- 3.Costs of the suit to be borne by the 1st Respondent
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act Cap 26 Laws of Kenya; Section 9 of the Fair Administrative Actions Act, 2015; Order 53 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chief Land Registrar, Nairobi & another; Criticos & another (Exparte Applicants) (Judicial Review Miscellaneous Application E011 of 2023) [2024] KEELC 1705 (KLR)", Case Analysis (2024). Notice of Motion dated 23rd December 2023 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1705/eng@2024-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.