Mwanthi v Malundu & 3 others (Environment & Land Case 006 of 2020) [2025] KEMC 32 (KLR)
The bottom line
#A Makindu magistrate's court ruled it cannot force the Land Registrar to hand over a title deed — only Kenya's High Court can issue that kind of order.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the magistrates' court to compel the Land Registrar to release a title deed
The court lacks jurisdiction; the relief sought is in substance mandamus over the conduct of a public officer, which is a matter for judicial review before the High Court.
The court distinguished mandatory injunction from mandamus. Although framed under Order 40 as a mandatory order, the substance of the application was to compel the Land Registrar, a public authority not party to the suit, to issue/release a certificate of title. A mandatory injunction cannot lie against a non-party, and the conduct alleged against the Registrar (withholding a title because of a pending court case) is a matter for judicial review, which only the High Court can hear in the first instance. Sections 1A, 1B and 3A of the Civil Procedure Act cannot cure the absence of jurisdiction.
Whether 'release' of an already-generated title differs from 'issue'
No; relabelling the prayer from 'issue' to 'release' is a game of semantics since, when a certificate of title is prepared and released to a proprietor, it is said to have been issued.
The applicant argued the title had already been generated and only its release was sought. The court held this was semantic because release and issue mean the same thing in context; the true substance remained compelling the Registrar to hand over the title, i.e. mandamus. Consequently Order 40 did not apply and the jurisdictional objection stood.
Duty of the court to assist a party in obtaining evidence
It is not the court's duty to assist a party in obtaining evidence; the applicant may seek a certified copy of the Register or summon the Land Registrar to produce records at the hearing.
Having found the court without jurisdiction, the court observed that a litigant must obtain her own evidence. It pointed to lawful alternatives: applying to the Land Registrar for a certified copy of the Register in respect of the suit land, or applying for a summons to the Land Registrar to attend and produce the records at the hearing of the suit.
Legal principles established
#- A mandatory injunction cannot be granted against a person who is not a party to the suit or proceedings in which it is sought.
- An order compelling a public officer such as a Land Registrar to issue a certificate of title is in substance mandamus/judicial review, a remedy reserved for the High Court in the first instance, and a magistrates' court is devoid of jurisdiction to grant it.
Court orders
#- 1.The application dated 19/7/2024 is dismissed
- 2.Costs of the application to the plaintiff
- Jurisdiction invoked
- Articles 23(2) and 169(1)(a) of the Constitution of Kenya read with the Magistrates Court Act No. 26 of 2015 and section 5 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwanthi v Malundu & 3 others (Environment & Land Case 006 of 2020) [2025] KEMC 32 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/32/eng@2025-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.