Republic v District/County Land Registrar, Nairobi & another; Kimaili (Ex parte Applicant) (Environment and Land Judicial Review Case E025 of 2024) [2026] KEELC 3365 (KLR)

JUDGMENT 1. Pursuant to leave granted on 12th March, 2025 the exparte applicant filed the substantive notice of motion dated 1st April, 2025 expressed to be brought under Order 53 Rule 1 (1),(2) and (4) of the Civil Procedure Rules and Sections 8 & 9 of the Law Reform Act seeking the following orders:1. That the honourable court be and is hereby pleased to grant an order of Mandamus compelling the respondents to register in the name of the applicant and release the title deed in respect of land reference number 13673/802 (IR No. 43888/654) in strict compliance with the provisions of the Land Registration Act and the Constitution of Kenya. 2. That the costs of this application be provided for. 3. Any other order that the honourable court may deem fit and expedient to grant. 2. The facts relied on by the exparte applicant as contained in the statutory statement are that she entered into a sale agreement dated 26th January, 2023 for the purchase of the property known as LR. No. 13673/802 at a purchase price of Kshs.2,520,000/- which she paid to the vendor-Richard Ndungu Njoroge in full. Thereafter, the vendor released all the original documents including the title deed and the exected transfer instruments. 3. The exparte applicant stated that she paid for stamp duty, and lodged the documents for regitration of the transfer and that she was issued with a booking form on 4th May, 2023. However, the 2nd respondent has refused to efiect the said registration and has ignored the letters written by her advocates. For this reason, she is unable to present plans and obtain approvals despite paying all requisite charges for the registration. 4. The exparte applicant pleaded that the inaction by the respondents to efiect the transfer is illogical, tainted with illegality thus violating Articles 40, 47, 48 and 65 of the Constitution. Additionally, that the said respondents have acted ultra vires contrary to the rules of natural justice and the provisions of Section 7 (2)(b), (j),(k) and (m) of the Fair Administrative Action Act as well as Section 14 of the Land Registration Act. 5. The substantive motion is further supported by the verifying afidavit of the exparte applicant sworn on 18th September, 2024. The contents of this afidavit refer to the facts relied on in the statutory statement and there will be no need to reproduce the same. 6. In support of the application, the exparte applicant annexed a copy of the sale agreement, a copy of the stamp duty duly paid and the booking form indicating the date when the instruments of transfer were lodged for registration. 7. On 23rd February, 2026 this court gave directions as to the filing of the response to the notice of motion as well as the disposal of the same which was through written submissions. By the time of writing this judgment, the respondents had not filed their response and neither party had filed written submissions. Be that as it may, I have considered the substantive motion and the documents in support thereof. The issue for determination is whether the orders of Mandamus ought to issue. 8. It is not in dispute that the exparte applicant entered into a sale agreement for the purchase of property known as LR. No. 13673/802. It is also not in doubt that being desirous to be registered as the owner of the property, the ex parte applicant lodged the transfer instruments to enable the said registration on 8th May, 2023. A follow up on the said registration was made which yielded no response. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3365/eng@2026-06-04 2

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9. On whether the order of mandamus ought to issue which is sought by the ex parte applicant, the Court of Appeal in Republic vs. Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 266 of 1996 stated 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 specified which appertains to his or their ofice 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 specific legal right or no specific 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, beneficial and efiectual. The order must command no more than the party against whom the application 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 specific way...These principles mean that an order of mandamus compels 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. 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 but if the complaint is that the duty has been wrongfully performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done...Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons.” 10. Section 14 of the Land Registration Act provides:“ The chief land registrar, county land registrars or any other land registrars may, in addition to the powers conferred on the ofice of the registrar by this Act— 11. a. require any person to produce any instrument, certificate or other document or plan relating to the land, lease or charge in question, and that person shall produce the same; b. ... c. refuse to proceed with any registration if any instrument, certificate or other document, plan, information or explanation required to be produced or given is withheld or any act required to be performed under this Act is not performed;” While the land registrar is mandated to register any interest in land under Section 14 (1) (a) of the Act, the land registrar has powers to decline any registration if there is reason for such decline. However, I am of the view that there has to be an explanation for the refusal which must be disclosed to the party. In this case, the transfer instruments were lodged for transfer and in fact a booking form was issued. Since then, no action has taken place and the follow up through the advocates resulted in futility. Where a https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3365/eng@2026-06-04 3

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public body is mandated by law to perform a certain duty and fails to do so, an order of mandamus compelling performance of the act would be necessary to enable the realization of the interest in land. 12. From the above, I am persuaded that the ex parte applicant has demonstrated suficient grounds to invoke the orders of mandamus. I find merit in the substantive notice of motion dated 1st April, 2025 and it is allowed in the following terms:i. An order of Mandamus is hereby issued compelling the Chief Land Registrar and the Land Registrar to register the property known as LR No. 13673/802 (IR No. 43888/654) in the name of the ex parte applicant and issue a certificate of title thereof within 21 (twenty one) days from the date hereof and in compliance with the provisions of the Land Registration Act. ii. The ex parte applicant is awarded the costs of this application, the same is to be borne by the respondents. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 4TH DAY OF JUNE, 2026. HON. MBOGO C.G. JUDGE 04/06/2026. In the presence of: Ms. Vena Atieno - Court assistant Mr. Getange holding breif for Mr. Gesicho for the Ex-parte Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3365/eng@2026-06-04 4

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