Republic v Chief Land Registrar & another; Jefwa & 13 others

KIRAO RODGERS .................................................................................. APPLICANT KIRAO MWAGIRANI ............................................................................. APPLICANT JOSEPH KAVELEI .................................................................................... APPLICANT KIARO ....................................................................................................... APPLICANT POSHIA ...................................................................................................... APPLICANT KIRAO ....................................................................................................... APPLICANT AND CATHERINE BETTY .............................................................. INTERESTED PARTY MATHEKA JOHNSON ........................................................... INTERESTED PARTY NZIOKA MBONDO ................................................................ INTERESTED PARTY NATIONAL LAND COMMISSION ...................................... INTERESTED PARTY JUDGMENT 1. The Notice of Motion before the court is the one dated 2 February 2023, led by the applicants, which seeks the following Judicial Review orders, among other reliefs: a. This Honourable Court do issue an Order of Mandamus compelling the 1st respondent to implement the directive of the National Land Commission, issued on 15 February 2019, by registering Kadzo Jefwa Nguwa, Robert Kahindi Kirao, John Karisa Kirao, Lawrence Mumba Kirao, Henry Katana Kirao, Alphonce Majimbo Kirao, Rodgers Kirao Mwagirani, Joseph Kavelei Kirao, and Poshia Kirao as the joint owners of all that parcel of land known as Plot No. Kili/Jimba/45. b. The costs of this application be provided. 2. The application is supported by the application itself, premised on the face of it, the supporting adavit annexed thereto, dated 2 February 2023; the Statutory statement dated 18 November 2022; the Verifying Adavit sworn by Lawrence Mumba Kirao, dated 18 November 2022; and the supplementary adavit sworn by Lawrence Mumba Kirao and dated 18 November 2024. 3. The respondents oppose the application on the grounds of opposition dated 14 May 2025. 4. The application was canvassed through written submissions. I acknowledge the submissions from learned counsel for the applicants, Mr. Mwadilo, and from learned counsel for the respondents, Ms. Lutta, with much appreciation, as they went a long way toward assisting the court reach a verdict on the issues raised. 5. Based on the materials and submissions placed before me, the issues for this court's determination are whether the applicants have made out a case for issuance of the writ of mandamus against the 1st respondent. Who bears the costs of this action? 6. The applicants contend that they are the heirs and beneciaries of the estate of the late Kirao Kombe Hare, deceased, pursuant to a Certicate of Conrmation of Grant issued on 25 January 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18618/eng@2025-12-11 2

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7. They contend that the deceased was the lawful owner of a parcel of land known as L.R. Kili/ Jimba/ 45 and resided on the subject parcel with his family, the applicants herein, until his untimely demise on 21 August 2021. After the deceased's death, the applicants herein continued to reside on the subject parcel of land and have remained in possession of the property to date. 8. In October 2018, the 3rd interested party, the National Land Commission, conducted investigations on grants and dispositions in respect of the Kili Jimba Settlement Scheme and vide a Gazette Notice Number 1549 dated 15 February 2019 it issued its determination in respect of the suit property by directing that the same be regularized in favour of the applicants herein by virtue of being heirs and beneciaries of the estate of the late Kirao Kombe Hare. 9. During the hearing before the 3rd interested party, the 1st interested party appeared before the commission, contending that she was the 2nd interested party's daughter, and submitted evidence on behalf of the 2nd interested party in support of the 2nd interested party's claim of proprietorship of the suit property. 10. Applicants assert that the 1st and 2nd interested parties were duly notied of and/or served with the decision of the 3rd interested party, along with the proceedings herein. Still, they have neither challenged, appealed, nor sought a review of the said determination. 11. Applicants aver that despite being served with the determination of the 3rd interested party (National Land Commission), the 1st respondent has failed and declined to issue and/or abide by the determination by failing to register the applicants as the lawful proprietors of the suit property, thus necessitating this suit. The 1st respondent directed the applicants to obtain a court order compelling him to register the suit property in the applicants' names. 12. The respondents on their part in the grounds of opposition aver that the applicants have failed to adduce any evidence of a prior request for compliance from the 1st respondent, or of a refusal to accede to the same request. The application is devoid of merit, as the applicants have failed to include material considerations that, prima facie, indicate that the 1st respondent committed a failure of duty, abused its discretion, or misused its authority, which, in public law, call for the remedies sought. No allegation of irregularity, ultra vires, or irrationality has been made, nor can any be construed from the application or the evidence adduced against the respondents. The 1st respondent is not aware of any alleged decision by the National Land Commission regarding the suit property, as it was neither a party to the alleged inquiry nor informed of any decision and/or directive, if any. 13. Mr Mwadilo, for the applicants, submits that Article 67(2) (e) mandates the 3rd interested party to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress. 14. The National Land Commission issued its determination vide the Gazette Notice No. 1549 dated 15 February 2019 by directing that the suit property herein, L.R. Kili/ Jimba/ 45, be regularized and registered in the names of the applicants while exercising its functions as described in Article 67 of the Constitution and Section 5 of the National Land Commission Act. 15. He asserts that the omission and/or action by the 1st respondent to fail to adhere to the above recommendation is unfounded and unjustied; thus, it is in the interest of justice that this Honorable Court issue the orders sought herein. Refer to Kenya National Examination Council v Geofrey Gathenji Njoroge & 9 others, Civil Appeal No. 266 of 1996 and Republic v County Secretary County Government of Machakos & another; Mbondo & another (Ex parte Applicants) [2022] KEELC 13426 (KLR). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18618/eng@2025-12-11 3

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16. Mr. Mwadilo contends that in Republic v County Land Registrar, Narok; Ex Parte Applicant Zubeda Bhachu [2021] KEELC 4725 (KLR), the Honorable Court therein cited the case of Republic v Registrar of Societies and 5 Others Ex Parte Kenyatta and 6 Others, HCMA No. 747 of 2006 (2008) 3 KLR (EP) 51, wherein the court observed that a party in a Judicial Review seeking an order of mandamus must show the existence of a statutory duty conferred or invested by statute upon some period, body, or person who has failed or neglected to act. 17. Mr Mwadilo asserts that the 1st respondent's omission and refusal to register the applicant as the proprietors of the suit property has left the applicants with no option but to approach this Honorable Court for an Order of mandamus compelling the 1st respondent to abide by the directives of the National Land Commission. The applicants rely on the Supreme Court's extensive advisory opinion on the National Land Commission's functions and the functions of the 1st respondent herein in National Land Commission v Attorney-General & 5 others; Kituo Cha Sheria & another (Amicus Curiae) [2015] KESC 3 (KLR). 18. On behalf of the respondents, Ms. Lutta submits that the application, as brought, does not disclose both the traditional common-law grounds for judicial review and the expanded grounds for judicial review listed in Section 7 of the Fair Administrative Action Act. These grounds are well known. 19. Whereas I agree with Mr Mwandilo on the extent of the Judicial review orders of mandamus as held in Kenya National Examination Council v Geofrey Gathenji Njoroge & 9 others, Civil Appeal No. 266 of 1996. The court, quoting with approval Halsbury's Laws of England, 4th edition, volume 1, at page 111, from paragraph 89, as follows: “ The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specied which appertains to his oce and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specic legal right or no specic legal remedy for enforcing that right. An order of Mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same. The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out is a specic way." 20. As submitted by Ms. Lutta, with whom I agree, the applicants have not established any illegality, irrationality, or procedural impropriety in the procedure followed or decision taken by the 1st respondent, as cited in the Ugandan case of Pastoli v Kabali District Local Government Council & Others (2008) 2 EA 300-301, where the court stated: “ In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality or procedural impropriety….” 21. As Ms. Lutta expressed, a Judicial Review application primarily aims to verify whether the correct procedure was followed by the public ocer, rather than to judge the decision's substantive merits. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18618/eng@2025-12-11 4

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This principle was armed in the case of Municipal Council of Mombasa v Republic Umoja Consultants Ltd, Civil Appeal No.185 of 2007(2002) eKLR, where the Court of Appeal stated that: “ The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e, the jurisdiction to make it? Were the persons aected by the decision heard before it was made? In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with and such court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself - such as whether this was or there was no sucient evidence to support the decision.” 22. The applicants have not provided any documentary evidence regarding the 1st respondent’s failure, lack of consideration, illegality, or irrationality in executing the directive from the National Land Commission via Gazette Notice Number 1549. Their only claim is that the 1st respondent instructed them to get a court order, which is hearsay and holds no evidentiary weight. 23. Furthermore, there are no records indicating that the applicants informed the 1st respondent of the directives from the National Land Commission, especially since the 1st respondent was not involved in any proceedings between the Commission and the applicants. 24. The rst respondent cannot cancel or annul the registration rights of any interested party without a court order. According to Section 79 of the Land Registration Act, 2012, the Land Registrar has the authority to correct the register in cases involving errors, mistakes, or omissions that do not signicantly impact the interests of the proprietor. However, this section does not empower the Land Registrar to cancel or annul a registered proprietor's title. Under Section 80 of the same Act, the Court can direct the register to be rectied by canceling or altering a registration if it determines that the registration was obtained, made, or omitted due to fraud or mistake. 25. Section 80 of the Act provides: “ Subject to subsection (2), the court may order the rectication of the register by directing that any registration be cancelled or amended if it is satised that any registration was obtained, made or omitted by fraud or mistake. 1. 26. The register shall not be rectied to aect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectication is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.” An examination of the Notice of Motion reveals that the primary issue in these proceedings is the ownership of parcel No. Kili/Jimba/45. It is not about the process the 1st respondent used to make its decision, if any, not to follow the NLC recommendations. Consequently, judicial review is not appropriate in this case, as the matter should be decided on its merits. See Republic v Registrar of Societies, Winnie N. Shena, Alfred Obuya Obengo, Jacinta Moki, Mukulu N. Kariuki & Attorney General Ex parte Lydia Cherubet (Interim Chairperson), Joash Ochieng (Interim Secretary) and Pricilla Nthenya (Interim Treasurer) of National Nurses Association of Kenya & Jeremiah Mainah [2016] KEHC 8055 (KLR),in which the court criticized the practice of using Judicial Review to seek decisions that require a whole exercise of merit-based analysis, including the assessment of evidence on factual issues. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18618/eng@2025-12-11 5

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27. Motion dated 2 February 2023 dismissed with costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON DECEMBER 11, 2025. E. K. MAKORI JUDGE In the presence of: Mr. Mwadilo for the Applicants Ms.Lutta for the Respondents Mr.Kiilu for the 3rd Interested Party Jill: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18618/eng@2025-12-11 6

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