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ELCPartially AllowedELC Judicial Review No. E013 of 2025· [2026] KEELC 3916 (KLR)

Zarry v Land Registrar, Kwale & another (Environment and Land Judicial Review Case E013 of 2025) [2026] KEELC 3916 (KLR)

Environment and Land Court
17 June 2026
7,152 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land registries cannot demand irrelevant documents before issuing searches, and ordered the Kwale Registrar to release the records.

What this practically means

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Executive summary

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The Environment and Land Court at Kwale (L.L Naikuni, J) allowed an undefended judicial review application by Juma Salim Zarry against the Land Registrar, Kwale and the Attorney General. The ex-parte applicant, whose late father was the original allottee of Plot No. 378 Diani Settlement Scheme, applied for an official search and green card for the parcel Kwale/Diani S.S/378, paid the statutory fees and filed form RL 26, but the Registrar refused to issue the records unless he first produced 'the four pages of a Certificate of Title' - a document his family had never been issued. The court framed four issues: the scope of judicial review; whether the suit met the threshold; entitlement to prerogative reliefs; and costs. After an extensive review of the doctrine - tracing judicial review from Sections 8 and 9 of the Law Reform Act and Order 53 through to its constitutional entrenchment under Articles 23(3)(f) and 47 and the Fair Administrative Action Act, and citing the Supreme Court's Dande decision - the court held the suit met the Order 53 threshold and that the Registrar, a public officer bound by Articles 73 and 232, had failed and/or refused to perform a clear statutory duty under the Land Registration Act despite full compliance by the applicant. Mandamus was issued compelling issuance of the official search, green card and all registry records; certiorari quashed the unlawful Certificate-of-Title pre-condition; and a declaration issued that the refusal violated Articles 35, 40, 47 and 48 and Sections 4-7 of the FAA Act. The court declined conservatory orders touching ownership or use, holding those matters fall outside judicial review. Costs were awarded to the applicant, borne by both respondents jointly and severally.

Key legal issues

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01

Scope and nature of judicial review under the Constitution of 2010

Holding

Judicial review is no longer a common law prerogative but a constitutional remedy; post-2010 it is entrenched in Articles 23(3)(f) and 47, and where a party comes under the Constitution the court may undertake a merit review.

Reasoning

The court traced judicial review from the Law Reform Act and Order 53 to its constitutional entrenchment. Relying on the Supreme Court's Dande decision, it noted that a suit filed under the Constitution and the Fair Administrative Action Act invites examination of fairness and the constitutional guarantees of expeditious, efficient, lawful, reasonable and procedurally fair administrative action, going beyond the narrow Order 53 process review.

p. 11
02

Whether the applicant's suit met the threshold for judicial review

Holding

Yes. The applicant complied with Order 53 procedure, sought leave, paid statutory fees, filed form RL 26, and the Registrar's refusal to issue records was a reviewable public-law wrong.

Reasoning

The applicant showed illegality, irrationality and procedural impropriety: the Registrar refused to issue an official search and green card despite full payment of statutory fees, demanding a 'four pages of a Certificate of Title' requirement unknown to the Land Registration Act and impossible to satisfy since no title had ever been issued. The court held the Registrar failed in his statutory duty as custodian of public records, meeting the mandamus test of a clear public legal duty, prior demand and express refusal.

p. 29
03

Entitlement to prerogative reliefs

Holding

Mandamus and certiorari were granted; the court declined to make orders on ownership or use, confining itself to the records/registration information issue.

Reasoning

The court found a case made out for mandamus compelling issuance of the search, green card and registry records, and certiorari quashing the unlawful pre-condition demanding a Certificate of Title. It invoked Articles 73 and 232 on accountability and ethics, and aligned itself with the Casca Traders authority. It deliberately withheld conservatory orders on ownership since judicial review cannot determine title disputes.

p. 29

Legal principles established

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  • Once statutory conditions are met, a Registrar cannot frustrate a proprietor through administrative inertia or unreasonable demands.
  • Judicial review is concerned with the decision-making process, not the merits of the decision.
  • To succeed in judicial review the applicant must show the decision or act complained of is tainted with illegality, irrationality or procedural impropriety.
  • Failure to comply with Order 53 Rule 7 (annexing the decision sought to be quashed) renders a certiorari application incompetent.

Court orders

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  1. 1.Judgment entered in favour of the Ex-Parte Applicant
  2. 2.An Order of Mandamus compelling the Respondent to forthwith issue to the Applicant the official search, green card, and all registry records relating to Plot No. 378 - Diani Settlement Scheme (DSS)
  3. 3.An Order of Certiorari removing into the court and quashing the Respondent's illegal administrative requirement that the Applicant must first produce 'the four pages of a Certificate of Title' before an official search or registry extract can be issued in respect of Plot 378 DSS
  4. 4.A Declaration that the Respondent's refusal and/or neglect to issue the Applicant with the land records is unlawful, unreasonable, irrational, procedurally unfair, and in violation of Articles 35, 40, 47 and 48 of the Constitution and Sections 4-7 of the Fair Administrative Action Act
  5. 5.Costs of the suit awarded to the Ex-Parte Applicant, to be borne by the 1st & 2nd Respondents jointly and severally
Jurisdiction invoked
Articles 22, 23, 35, 40, 47, 48 & 50 of the Constitution; Sections 7, 8 and 9 of the Fair Administrative Action Act; Section 13(7) of the Environment and Land Court Act, No. 19 of 2011; Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules

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, "Zarry v Land Registrar, Kwale & another (Environment and Land Judicial Review Case E013 of 2025) [2026] KEELC 3916 (KLR)", Case Analysis (2026). ELC Judicial Review No. E013 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3916/eng@2026-06-17

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