[2006] KEHC 1243 (KLR)
The court found that the applicant had complied with all procedural requirements for leave to apply for judicial review, including timeliness under Order LIII Rule 2. The District Land Registrar's refusal to resolve the boundary dispute, unless the applicant paid unrelated court-ordered costs, constituted a failure...
Source-derived case information.
- Citation
- [2006] KEHC 1243 (KLR)
- Parties
- Applicant: Republic; Respondent: District Land Registrar Busia/Teso; Applicant: Gabriel Okello Murwayi; Interested Party: Humprey Ekesa Khaunya
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- ? 2 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Leave to Apply for Judicial Review (mandamus)
- Outcome
- Application for leave granted.
- Judges
- CA Ombija
- Legal Topics
- Judicial Review, Mandamus, Statutory Duties, Land Boundary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
District Land Registrar Busia/Teso
Respondent
Gabriel Okello Murwayi
Applicant
Humprey Ekesa Khaunya
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Leave to Apply for Judicial Review (mandamus)
Legal Issues
- 1 Whether the applicant is entitled to leave to apply for an order of mandamus against the District Land Registrar.
- 2 Whether the respondent has a statutory duty to resolve boundary disputes and has failed to perform it.
- 3 Whether the application for leave is time-barred under Order LIII Rule 2 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicant had complied with all procedural requirements for leave to apply for judicial review, including timeliness under Order LIII Rule 2. The District Land Registrar's refusal to resolve the boundary dispute, unless the applicant paid unrelated court-ordered costs, constituted a failure to perform a statutory duty. The court held that the applicant had established sufficient grounds for leave to apply for an order of mandamus, as the Registrar's duty to resolve boundary disputes is statutory and not discretionary. The application was therefore granted, and the applicant was directed to file the substantive motion within 21 days.
Court Disposition
Application for leave granted.
Orders
- Leave is granted to the applicant to apply for orders of mandamus against the District Land Registrar Busia/Teso as prayed.
- Applicant to file the Notice of Motion within 21 days from the date of this order.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
Misc Civ Appli 2 of 2006
IN THE MATTER OF AN APPLICATION BY GABRIEL OKELLO MURWAYI OF LEAVE TO APPLY FOR ORDERS OF JUDICIAL REVIEW
AND
IN THE MATTER OF THE REGISTERED LANDS ACT (CAP 300 LAWS OF KENYA)
AND
IN THE MATTER OF THE LAW REFORM ACT CAP.26 LAWS OF KENYA
REPUBLIC...........................................................................................................................................APPLICANT
VS
DISTRICT LAND REGISTRAR BUSIA/TESO.........................................................................RESPONDENT
AND
HUMPREY EKESA KHAUNYA....................................................................................INTERESTED PARTY
EXPARTE
(GABRIEL OKELLO MURWAYI)
RULING
By an application dated 16th January, 2006 by way of an ex-parte Chamber Summons, pursuant to the provisions of Order LIII Rule 1(2) of the Civil Procedure Rules, the applicant seeks orders:
(1)That this Honourable court be pleased to grant leave to the applicant to apply for orders of mandamus to direct the District Lands Registrar Busia/Teso to visit, survey, establish the boundary between land parcels No.L.R. BUKHAYO/MALANGA/130 and L.R. BUKHAYO/MALANGA/131 and file the report.
(2)Costs hereof be provided for.
The application is based on the grounds that:
(1)The respondent has a legal duty to solve boundary disputes.
(2)The respondent has refused to perform his statutory duty.
(3)The applicant is desirous of applying for an order of Mandamus.
(4)It is a mandatory prerequisite that leave is sought prior to filing the substantive proceedings.
The application is predicated upon the annexed affidavit of Gabriel Okello Murwayi sworn on the 13th day of January 2006.
For the applicant, it was argued that on 13th December, 2005, an application was made to the District Lands Registrar Busia/Teso requesting him to visit land parcel NO.BUKHAYO/MALANGA/130 and 131 with a view to resolving the boundary dispute between the applicant and his neighbour. Copies of receipts vide which the application was made are marked “GOM -01 (a) and (b).”
That the respondent reacted by a letter exhibited as “GOM – 02” declining. The visit was made conditional upon the applicant paying the cost of Civil suit No.95 of 2002, apparently ordered by the court.
It is the contention of the applicant that the respondent’s refusal to undertake his statutory duty is based either on incompetence or in ignorance of the law. It could also be mischief. That this court should therefore grant leave for the applicant to apply for orders of mandamus as prayed for herein.
I have carefully analysed the evidence in support of the application and note that the decision complained of was made on 29th December, 2005 and this application made on 20th December 2006, a period of less than six (6) months as enjoined by the provisions of Order LIII, Rule 2 of the Civil Procedure Rules.
Accordingly, I grant the application in terms of prayer 1 and 2. I equally note that all other requirements under Order LIII Rules 1(2) and 1(3) have been complied with.
By way of direction, the applicant shall file the Notice of Motion within 21 days from the date of this order as provided by Order LIII Rule 3 of the Civil Procedure rules.
DATED and DELIVERED at BUSIA this 31st day of July 2006.
N.R.O. OMBIJA
JUDGE
Mr. Ashioya for Mr. Were.