Amalia (Suing as lawful attorney of Francesco Jourban) v Chief Land Registrar & another (Environment and Land Judicial Review Case E005 of 2023) [2024] KEELC 4418 (KLR)
The bottom line
#Nairobi's Environment and Land Court ordered the Chief Lands Registrar to reconstruct missing deed files and fix a land register, but refused to cancel another party's lease.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant has locus standi to file the suit
The Applicant, being the duly appointed and registered power of attorney, has locus standi.
The Court applied the general rule of interpretation that documents conferring rights over immovable property must be registered under Section 4 of the Registration of Documents Act, and stamp duty under Sections 19 and 20 of the Stamp Duty Act. The Power of Attorney dated 26th September 2022 was registered and bore the seal confirming payment of stamp. The Applicant also held a confirmed grant in Succession Cause No. 2450 of 2013, reinforcing standing.
Whether orders of mandamus can be issued as sought
Mandamus granted under Prayers 2 and 3 (reconstruction of deed files and rectification of the register), but refused under Prayer 4 (pulling down the unregistered lease over LR No. 15314/6).
The Court scrutinised the evidence and found the Applicant duly constituted by the power of attorney and confirmed grant. Prayers 2 and 3 were granted. Prayer 4 failed because the Applicant offered no evidence to displace the root of title and the affected party, Mr. Macharia, was not joined, violating the principle that a party cannot be condemned unheard.
Who bears the costs of the suit
No orders as to costs despite the Applicant's success.
Although the general rule is that costs follow the event under Section 27 of the Civil Procedure Act, the Court considered that the Respondents, as public institutions, did not participate, and directing costs against them could percolate cycles of endless litigation. The Court therefore exercised its discretion to depart from the general rule.
Legal principles established
#- A duly appointed and registered power of attorney has locus standi before the Court.
- Costs follow the event under Section 27 of the Civil Procedure Act, but a successful party may be denied costs for good reason.
- The Court cannot condemn a party who is not before it; the right to fair hearing must be upheld.
Court orders
#- 1.An order of mandamus compelling the 1st Respondent to avail or reconstruct the Deed Files and any other record in respect of Land Reference Number 9953/1, Title No. I. R 37032 and Land Reference Number 9953/2, I. R 16910.
- 2.An order of mandamus compelling the 1st Respondent to rectify the Lands Register over Land Reference Number 9953/1, Title No. I. R 37032 to read and record the endorsed term of Ninety Nine years as the mother Title being of Land Reference Number 9953 as from 1st April 1959.
- 3.No orders as to costs.
- Jurisdiction invoked
- Section 33(5) and Section 80(1) of the Land Registration Act; judicial review jurisdiction to compel public officers by mandamus
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amalia (Suing as lawful attorney of Francesco Jourban) v Chief Land Registrar & another (Environment and Land Judicial Review Case E005 of 2023) [2024] KEELC 4418 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4418/eng@2024-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.