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ELCPartially AllowedNot stated in judgment (Application dated 3/03/2020)· [2025] KEELC 432 (KLR)

Kibe & another v Chief Land Registrar & 9 others (Judicial Review Application 1 of 2020) [2025] KEELC 432 (KLR)

Environment and Land Court
10 February 2025
MOMogeni
2,216 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's land registry can't ignore court orders: the High Court declared the Chief Land Registrar's failure to implement a 2019 land ruling violated the owners' constitutional rights.

What this practically means

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Executive summary

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The Applicants, members of the Gachagi Group, brought an application dated 3/03/2020 under the Fair Administrative Action Act seeking declarations that they were entitled to expeditious, efficient, lawful, reasonable and procedurally fair administrative action in implementation of a judgment of the Environment and Land Court delivered on 2/05/2019 in Simon Kibe Mwangi and 4 Others v Thika Garissa Road Developers Limited and 5 Others, in which the Group was declared to have acquired prescriptive rights over land parcel LR 4953/1855 in Thika Municipality and was held entitled to be registered as proprietors for the remainder of the leasehold period. The Applicants complained that the 1st Respondent, the Chief Land Registrar, had failed to implement that order, and sought declarations against the 2nd to 5th Respondents regarding land use planning and conflict of interest, as well as an order setting aside actions taken in purported compliance with the judgment and remitting the matter to the Registrar with directions. The application was unopposed; the Respondents, though served, filed no response. Mogeni J restated the principle that unopposed evidence is not automatic proof and that the burden of proof remains on the Applicant. The court held that the Respondents' provisions did not empower them to disregard the court orders and that the 1st Respondent's inaction was unfair. The Judicial Review application was found merited in part: three declarations were issued concerning the 1st, 2nd and 3rd Respondents' obligations in compliance with the 2/05/2019 orders, the setting-aside and remittal relief was not granted, and each party was ordered to bear their own costs.

Key legal issues

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01

Whether the 1st Respondent's inaction in implementing the judgment of 2/05/2019 violated the Applicants' right to fair administrative action

Holding

The 1st Respondent's inaction leading to failure to implement the Court decision was unfair to the Applicants; the application was merited in part

Reasoning

The court noted the judgment of 2/05/2019 directed the Respondents to prepare leasehold ownership documents for the Applicants' members, yet the order was never implemented and no explanation was offered. The court held that the provisions cited did not give power to the Respondents to disregard the orders and that the 1st Respondent had discretion to convene a meeting of Gachagi members to address their leases.

p. 6
02

Whether the unopposed application could be granted without interrogation of the evidence

Holding

The court retained an obligation to interrogate the Applicants' evidence despite the application being unopposed

Reasoning

The court cited authorities to the effect that unopposed evidence is not automatic proof. While the Applicants' unchallenged evidence would ordinarily be credited, the court still had to satisfy itself that the application was merited before granting relief on the balance of probability.

p. 4

Legal principles established

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  • Uncontroverted evidence does not automatically prove a case; the party must still discharge the burden of proof on a balance of probability
  • Every person has a right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair

Court orders

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  1. 1.A Declaration that the Applicants have a right to a Fair Administrative Action which is expeditious, efficient, lawful, reasonable and procedurally fair of the 1st Respondent to cause commencement of transactions in compliance with the Orders of the Court made on 2/05/2019 in Simon Kibe Mwangi and 4 Others v Thika Garissa Road Developers Limited and 5 Others (2019) eKLR
  2. 2.A Declaration that the 2nd Respondent should monitor and oversee the Land Use Planning on land Parcel No. LR 4953/1855 in Thika Municipality in accordance with the provisions of Section 9 of the Physical and Land Use Planning Act No. 13 of 2019 in accordance with the Court Order of 2/05/2019
  3. 3.A Declaration that the 3rd Respondent prepares a local Physical and Land Use Development Plan in accordance with the Physical and Land Use Planning Act No. 13 of 2019 in accordance with the Court Order of 2/05/2019
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 47(1) and 47(3)
  • Fair Administrative Action ActAct No. 4 of 2015 (generally)
  • Physical and Land Use Planning ActSections 9, 41(3), 47
  • Land Registration ActSections 14, 79(1)(a),(b),(c)
  • Registration of Titles ActChapter 281 Laws of Kenya (repealed)

Cases cited (5)

  • Shaneebal Limited Vs. County Government of Machakos
    (2018) eKLR
  • Karuru Munyororo Vs. Joseph Ndumia Murage & Another
    Nyeri HCCC No.95 of 1988
  • Kenya Power & Lighting Company Limited Vs. Nathan Karanja Gachoka & Another
    [2016] eKLR
  • Gichinga Kibutha Vs. Caroline Nduku
    (2018) eKLR
  • Simon Kibe Mwangi and 4 Others Vs. Thika Garissa Road Developers Limited and 5 Others
    (2019) eKLR, ELC 279 of 2017 consolidated with Thika ELC 212 of 2017 (formerly Nairobi ELC 110 of 2013 and Nairobi ELC 212 of 2017)
Jurisdiction invoked
Fair Administrative Action Act, 2015, enacted pursuant to Article 47(3) of the Constitution

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, "Kibe & another v Chief Land Registrar & 9 others (Judicial Review Application 1 of 2020) [2025] KEELC 432 (KLR)", Case Analysis (2025). Not stated in judgment (Application dated 3/03/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/432/eng@2025-02-10

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