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ELCAllowedJudicial Review Application (Notice of Motion dated 21st March, 2023) - number not stated in judgment· [2024] KEELC 3931 (KLR)

Republic v Land Registrar, Nakuru; Ngigi (Exparte Applicant) (Judicial Review Application E003 of 2023) [2024] KEELC 3931 (KLR)

Environment and Land Court
20 May 2024
MOM. A. Odeny
1,084 words in judgment
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The bottom line

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Kenya's Environment and Land Court forced the Nakuru Land Registrar to issue delayed official searches and a green card within seven days, at his own costs.

What this practically means

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Executive summary

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This was a Notice of Motion dated 21st March 2023 by Peter Gitiya Ngigi, the ex parte Applicant and legal administrator of the estate of Ngigi Kimani Kibiku (deceased), seeking an order of mandamus by way of judicial review compelling the Land Registrar, Nakuru, to issue certificates of official search for all subdivisions arising from Kiambogo/Kiambogo Block 2/468 (Mwariki) and a certified copy of the green card for Kiambogo/Kiambogo Block 2/62 (Mwariki). Leave had been granted on 17th March 2023. The Applicant deponed that while distributing the estate he discovered the first parcel had been subdivided into about 74 portions, and that despite lodging applications for the search certificates and green card, the Respondent had failed, refused or neglected to issue them. The Respondent opposed, asserting the Applicant had failed to collect the certificates of official search. In a further affidavit the Applicant stated that upon visiting the lands office he was directed to wait as the certificates could not be generated. The court framed one issue: whether the Applicant was entitled to the orders sought. Applying Sections 9(1) and 10 of the Land Registration Act, 2012, and the decision in Esther Kabugi Njuguna v Martha Chebet & 3 others [2020] eKLR, the court held the Registrar is the custodian of land records and bound to make the register accessible. Finding the Respondent's defence contradicted by the further affidavit, and noting the Respondent filed no submissions, the court granted the mandamus orders with a 7-day compliance period and awarded costs to the Applicant.

Key legal issues

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01

Whether mandamus lies to compel the Land Registrar, Nakuru to issue certificates of official search and a certified green card

Holding

Yes; the Applicant, as administrator of the deceased registered owner's estate, applied for and was entitled to the documents, and the Respondent's failure to issue them justified mandamus.

Reasoning

The court applied Sections 9(1) and 10 of the Land Registration Act, 2012, which oblige the Registrar to keep and make accessible the register and related documents. The Respondent's assertion that the Applicant had failed to collect the searches was contradicted by the Applicant's further affidavit showing he attended the lands office and was told the certificates could not be generated. The Respondent also filed no submissions. The court concluded the Respondent was evading his statutory duty and granted the motion as prayed.

p. 3

Legal principles established

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  • The Land Registrar is statutorily mandated to maintain the register and documents in a secure, accessible and reliable format, and to make information in the register accessible to the public.
  • Where a public officer admits a demand has been made but withholds performance, an order of mandamus will issue to compel performance.

Court orders

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  1. 1.The Land Registrar Nakuru is ordered to issue the ex parte Applicant Certificates of official search in respect of all the subdivisions arising from Kiambogo/Kiambogo Block 2/468 (Mwariki) within 7 days
  2. 2.The Land Registrar Nakuru is ordered to issue the ex parte Applicant with a certified copy of green card in respect of parcel of land known as Kiambogo/Kiambogo Block 2/62 (Mwariki) within 7 days
  3. 3.The costs of the application shall be borne by the Respondent

Authorities

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Legislation

  • Land Registration ActSection 7 (1) and (2)
  • Land Registration ActSection 9 (1)
  • Land Registration ActSection 10
  • Civil Procedure RulesOrder 21 [1]
  • Constitutionfreedom of and access to information (as referenced in Section 10 of the Land Registration Act)

Cases cited (4)

  • Asili Housing Cooperative Society Ltd v District Land Registrar, Kajiado South and Central
    [2021]
  • Kingdom Kenya 01 Limited V The District Land Registrar, Narok & 15 others
    [2018] eKLR
  • Wainaina Kigathi Mungai v Land Registrar Kilifi & Another
    [2017]
  • Esther Kabugi Njuguna –vs Martha Chebet & 3 others
    [2020] eKLR
Jurisdiction invoked
Judicial review jurisdiction under leave granted on 17th March 2023; statutory basis in the Land Registration Act, 2012 (Sections 9 and 10)

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, Nakuru; Ngigi (Exparte Applicant) (Judicial Review Application E003 of 2023) [2024] KEELC 3931 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 21st March, 2023) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3931/eng@2024-05-20

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