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ELCAllowedJudicial Review Application (Notice of Motion dated 31st October, 2023)· [2024] KEELC 4545 (KLR)

Republic v Land Registrar, Narok & 2 others; Koonyo (Interested Party); Kenga & 160 others (Exparte Applicants) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 4545 (KLR)

Environment and Land Court
6 June 2024
CMC.G. Mbogo
1,903 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court ordered the Narok Land Registrar to finally resolve a two-year-old land boundary dispute after unexplained inaction.

What this practically means

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Executive summary

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The Ex-Parte Applicant, treasurer of the Kenga family, sought judicial review by Notice of Motion dated 31st October 2023 under Order 53 Rule 3 of the Civil Procedure Rules, the Fair Administrative Actions Act, the Law Reform Act, the Land Registration Act and Article 47 of the Constitution, seeking mandamus compelling the 1st and 2nd respondents to ascertain and fix the boundaries between land parcel CisMara/Olchoro/46 and CisMara/Olchoro/20 and its subdivisions, plus police security for the exercise. He deposed that parcel 20 had been subdivided into parcels 516 to 958 and the Interested Parties annexed his family's land; that following a judgment in ELC Case No. 389 of 2017 delivered on 19th May 2022, he registered a boundary dispute with the Land Registrar on 26th May 2022 and paid Ksh 5,500, but the Registrar never heard or determined the dispute or explained the inaction. Despite service, the respondents and Interested Parties filed no response; the motion was unopposed and canvassed by written submissions. The court framed the sole issue as whether the applicant was entitled to mandamus. Relying on Section 19(1) of the Land Registration Act, Article 47 of the Constitution, Section 4(1) of the Fair Administrative Actions Act, and the Court of Appeal's decision in Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge, the court held that boundary determination is the Registrar's statutory responsibility and the unexplained inaction violated the applicant's rights to fair hearing and expeditious administrative action. The motion was allowed: mandamus issued directing the respondents to fix the boundaries, the County Commander of Police, Narok was directed to provide security, and the respondents and Interested Parties were ordered to bear the costs.

Key legal issues

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01

Entitlement to mandamus against the Land Registrar

Holding

The court found the applicant deserving of mandamus because the Registrar failed to act on a duly registered boundary dispute

Reasoning

The applicant registered a boundary dispute with the Land Registrar on 26th May 2022 and paid the requisite fees of Ksh 5,500, but no action was taken. Section 19(1) of the Land Registration Act places responsibility for boundary determination on the Registrar. The unopposed evidence of the letter and receipt was found credible, and the inaction breached Article 47 of the Constitution and Section 4(1) of the Fair Administrative Actions Act, entitling the applicant to mandamus.

p. 5
02

Whether the inaction of the respondents violated the applicant's constitutional rights

Holding

Yes - the failure to hear and determine the boundary dispute violated the applicant's right to expeditious administrative action and fair hearing

Reasoning

Article 47 guarantees every person administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, while Article 50 guarantees the right to have any dispute resolvable by law decided in a fair and public hearing. The Registrar's unexplained failure to determine a dispute lodged in May 2022 breached these provisions and was unlawful.

p. 4

Legal principles established

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  • Mandamus compels the performance of a public duty imposed by statute where the person or body on whom the duty is imposed has failed or refused to perform it to the detriment of a party with a legal right to expect performance
  • Under Section 19 of the Land Registration Act, it is the responsibility of the Land Registrar to determine issues of boundaries between parties
  • Failure to determine a dispute requested by a party violates the right to fair hearing and to expeditious administrative action

Court orders

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  1. 1.An order of mandamus is issued directing the 1st and 2nd respondents to ascertain and fix the boundaries between land parcel number CisMara/Olchoro/46 and CisMara/Olchoro/20 and its subdivisions
  2. 2.The County Commander of Police, Narok County is directed to provide security to the 1st and 2nd respondents during the exercise
  3. 3.The 1st and 2nd respondents as well as the interested parties to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3
  • Fair Administrative Actions Act, No. 4 of 2015Sections 4(1) & (2), 7(1) & (2), 7(1)(a), 10(1), 11(1)(f) and (j)
  • Law Reform ActSections 8 and 9
  • Land Registration ActSections 18 and 19 (and 86 in submissions)
  • Constitution of KenyaArticles 47 and 50
  • Survey Actreferred to in Section 18(3) proviso

Cases cited (1)

  • Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge & Others
    Civil Appeal no 266 of 1996 [1997] eKLR
Jurisdiction invoked
Order 53 Rule 3 of the Civil Procedure Rules; Sections 4, 7, 10 and 11 of the Fair Administrative Actions Act; Sections 8 and 9 of the Law Reform Act; Sections 18 and 19 of the Land Registration Act; Article 47 of the Constitution (by leave granted on 16th October, 2023)

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, Narok & 2 others; Koonyo (Interested Party); Kenga & 160 others (Exparte Applicants) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 4545 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 31st October, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4545/eng@2024-06-06

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