Republic v County Land Registrar-Makueni County & 2 others; Mukilya

3. The application is premised upon the grounds on its face and the supporting adavit sworn by Onesmus Mutua Mukilya on 19th June, 2024. The deponent averred that he is the duly appointed attorney of Kanini Mukilya Ndia and has the authority to swear the adavit on her behalf on matters aecting Plot No. 1000 Nduu Adjudication Section, Kilungu Sub-County. 4. He averred that the Arbitration Board of Nduu Adjudication Section directed for the demarcation of an access road through Plot No. 1000 on 10th November, 2016. That vide the judgment of this court delivered on 2nd November, 2017 in Makueni ELCJR No. 2 of 2017, the court granted an order of certiorari quashing the decision of the Arbitration Board of Nduu Adjudication Section. 5. He contended that by the time when this court’s judgment and decree were being issued, the area maps for Nduu Adjudication Section had not yet been printed out. That when the nal survey maps were printed, the said illegal access road through Plot No. 1000 was included. He added that despite numerous requests to the Respondents from his advocatess to have the said road removed on the area map, his eorts have been disregarded. 6. The Ex-parte Applicant averred that the Land Registrar issued summons dated 12th October, 2023 scheduling a site visit to the suit property on 1st November, 2023. That on the material day, it was established that there wasn’t a road passing through Plot No. 1000 and the Respondents undertook to remove the impugned access road from the survey map. Despite their undertaking, the deponent contended that the Respondents have refused to amend the area map by removing the illegal road passing through Plot No. 1000. 7. The Ex-parte Applicant averred that the Respondents’ actions amount to a violation of his right to property under Article 40 of the Constitution since he is being arbitrarily dispossessed of part of his land through tampering with ownership records. That if the Respondents intend to re-establish a road through Plot No. 1000, then they ought to follow the statutory procedures for the establishment of a right of way through private land. 8. The Respondents led a replying adavit sworn on their behalf by the Makueni County Land Registrar, Samuel Kimiti on 25th February, 2025. He conrmed his site visit of the suit property on 1st November, 2023 upon receipt of a complaint from the Ex-parte Applicant. That from his site visit, he established the following:- 9. a. There was no road passing through Plot No. 1000 as alleged and that the road in question passes between Plot Nos. 1000 and 950. b. The Ex-parte Applicant occupies more land on the ground such that he had occupied Plot No. 1000 and part of Plot No. 950 which is on the other side of the road. c. The road in question is a public road placed as such during adjudication and consequently on the map. d. That the neighbours were against closing/removal of the road since it is the only road serving some plots like Plot No. 957 which has no alternative road. e. That the Ex-parte Applicant has encroached on Plot No. 950 which is across the road and if he was to restrict himself within the boundaries of Plot No. 1000, then the road will not be a problem. The Land Registrar explained that it was because of the foregoing reasons that the Respondents were unable to close the road as requested by the Ex-parte Applicant. That closure of the road would amount to committing an injustice against the residents who are lawfully entitled to use the road. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18700/eng@2025-07-31 2

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10. The Land Registrar further contended that matters concerning boundaries and positioning of access roads fall squarely within the mandate of the Land Registrar as provided under Sections 18 and 19 of the Land Registration Act, 2012 and hence the court lacks jurisdiction to entertain this matter. The deponent insisted that the application is fatally defective, lacks merit and is misleading and hence, it should be dismissed with costs. 11. The Ex-parte Applicant led a further adavit sworn by himself on 26th March, 2025. He averred that the Respondents failed to issue any report of their ndings and or make amendments to correct the errors in the survey map to ensure compliance with the judgment of this court in Makeni ELCJR No. 2 of 2017 where the impugned road was declared as unlawful. He added that there was no dispute between the owner of Plot No. 950 and himself in regard to the boundaries and that it was a creation by the Respondent using erroneous maps to justify their non-compliance. 12. The Ex-parte Applicant went on to contend that if indeed the owner of Plot No. 950 was landlocked, then they could have already applied for an access road. He added that even though the 1st and 2nd Respondents were not parties in Makeni ELCJR No. 2 of 2017, the orders issued therein bind them. That the 1st Respondent does not have the authority to re-open a road which has already been declared as illegal and unlawful. 13. The application was canvassed by way of written submissions. 14. In the Ex-parte Applicant’s submissions dated 27th March, 2025, Counsel argued that the Respondents have a statutory duty to ensure that land records accurately reect lawful determinations. That the nal survey map that was published by the Respondents disregards the judgment in Makueni ELCJR No. 2 of 2017 which declared the impugned access road as unlawful. 15. Counsel submitted that the Respondents hold the exclusive authority and responsibility to amend land records under Section 79 of the Land Registration Act, 2012 once maps have been nalized and printed. That the unlawful demarcation has persisted which has necessitated these proceedings. Counsel added that the Respondents had failed to issue a report of the site visit conducted on 1st November, 2023 further obstructing the rectication which is being sought. 16. Counsel contended that the Ex-parte Applicant had exhausted all the administrative remedies leaving mandamus as the only eective recourse which can address the Respondents’ inaction. It was further contended that the Respondents intend to demarcate a road through the suit property despite the judgment in Makueni ELCJR No. 2 of 2017. 17. Counsel asserted that the Respondents had not led any report to corroborate the claims in paragraph 5 of the replying adavit sworn by the 1st Respondent. It was further asserted that the Respondents’ failure to adhere to the statutory framework as well as the prior judgment of this court demonstrates an intent to unlawfully alter the status of the suit property. Urging the court to grant the prayers sought in the application, Counsel relied on the following case law: i. Kenya National Examination Council v Republic Ex Parte Georey Gathenji Njoroge & 9 others 18. The Respondents elected to rely on their Replying adavit without ling any submissions. 19. The Ex-parte Applicant has sought the judicial review orders of mandamus and prohibition in respect of the suit property known as Plot No. 1000 Nduu Adjudication Section. It is his contention that the Respondents have failed to implement the court’s judgment in Makueni ELCJR No. 2 of 2017 in which an order of certiorari was issued. The said order quashed the decision of the Arbitration Board https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18700/eng@2025-07-31 3

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of Nduu Adjudication Section which had initially allowed the demarcation of an access road within the suit property. 20. The Ex-parte Applicant contends that the Respondents went ahead and published the nal survey map encompassing the suit property and showing the impugned access road passing through the suit property. 21. In response to the Ex-parte Applicant’s claim, the Respondents contended that the impugned access road did not pass through the suit property. Rather, that it was in between Plot No. 1000 and Plot No. 950 and that the only reason why the Ex-parte Applicant was insisting on the road to be closed was because he had encroached on the neighbouring Plot No. 950. 22. Both the Ex-parte Applicant and the Respondents cited the case of Kenya National Examination Council v Republic Ex Parte Georey Gathenji Njoroge & 9 others [1997] eKLR, in which the Court of Appeal aptly held as follows: “ The next issue we must deal with is this: What is the scope and ecacy of an Order of Mandamus? Once again we turn to Halsbury’s Law Of England,4th Edition Volume 1 at page 111 From Paragraph89. That learned treatise says:“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 or their 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 and no specic legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, benecial and eectual.” At paragraph 90 headed “the mandate” it is stated: “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 in a specic way.” What do these principles mean? They mean that an Order of Mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.” 23. The issue arising for determination is whether the Ex-parte Applicant has demonstrated merit in the application for the judicial orders of mandamus and prohibition. 24. This court is granted jurisdiction to issue the orders sought pursuant to the provisions of Section 9 (3) of the Law Reform Act which provides as follows: “ Subject to the provisions of subsection (3), rules made under subsection (1) may prescribe that applications for an Order of Mandamus, prohibition or certiorari shall, in specied proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates." https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18700/eng@2025-07-31 4

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25. The governing rules for applications seeking judicial review orders are covered under Order 53 of the Civil Procedure Rules, 2010. Order 53 Rule 2 outlines as follows: “ Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired." 26. From the above provisions, it is clear that an application seeking judicial orders of either mandamus or prohibition has no statutory time limitation and only an application for an order of certiorari has a six-months’ time limitation. 27. This nding was endorsed by the court in Republic v Land Registrar Busia & 2 others; Nyabola (Exparte Applicant) [2024] KEELC 1319 (KLR) in the following manner: “ My reading of the provisions of Section 9(1), (2) and (3) of the Law Reform Act and Order 53 Rule (2) of the Civil Procedure Rules is that it is the rules which are made under the Civil Procedure Rules which will govern the time limit for an Applicant to le any application seeking for orders of certiorari, Mandamus and Prohibition. And in respect to an application for orders of certiorari, it is clear from Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules that the time limit is 6 months. No time limit has been prescribed under the rules within which an application for orders of Mandamus or prohibition must be led. In other words the time limit for seeking orders of Mandamus or prohibition is therefore not circumscribed by the provisions of Section 9(3) of the Law Reform Act or Order 53 Rule 2 of the Civil Procedure Rules. In any case, it would be impracticable and not in the interest of justice to limit the time for seeking an Order of Mandamus, which is a writ issued by the Court to compel the performance of any act by a particular agency, or an order of prohibition, which is a writ that forbids a certain act, to the time limit of 6 months. For instance, when a party approaches the Court seeking an order of prohibition, it means that the action being complained about is continuing. And when an Order of Mandamus is sought, it means that the body against whom it is sought has refused to perform a public duty imposed upon it by the law.” 28. The Exparte Applicant is seeking an order of prohibition. The law is clear that prohibition can only issue to prevent a future event from happening. It cannot be issued where what is sought to be prohibited has already happened as in the present case where the road in contention is already in place. 29. The judgment in Judicial Review Number 2 of 2017 was delivered before the area map was generated as the adjudication process was still going on. A look at the area map annexed to the Respondents’ replying adavit shows that if the impugned road was to be closed, it will render the owner of parcel 957 completely landlocked as he will not have any access to any road. 30. In any planning, each and every parcel must have an access road. The Land Registrar and Land Surveyor had the discretion to decide where roads of access were to be placed. As per the replying adavit of the Respondents, the Exparte Applicant’s land has encroached on to the adjacent plot No. 950. This explains why the Exparte Applicant argues that the road passes through his land. The fact that the owner of parcel 950 has not complained is no reason for the Exparte Applicant to conclude that the road passes through his land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18700/eng@2025-07-31 5

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31. In the case of Kenya National Examination Council (Supra) it was held that 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 in a specic way. 32. In the instant case, the Land Registrar and Surveyor had the power and discretion to x access roads for all parties in Nduu Adjudication Section. An Order of Mandamus cannot therefore issue commanding them to amend the area map and block the road which serves the public including the owner of parcel number 957 who will be rendered landlocked if this was to happen. I therefore nd that the Exparte Applicant’s notice of motion dated 19th June, 2024 is devoid of merit. The same is dismissed with costs to the Respondent. .................................. HON. E. O. OBAGA JUDGE JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY, 2025. In The Presence Of: Mr. Kuria for Ms. Lungu for Respondent. Mr. Muuo for Ms. Mwinzi for Exparte Applicant. Court assistant – Steve Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18700/eng@2025-07-31 6

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