[2023] KEELC 21144 (KLR)
The court held that it would not be fair or just to decline to adopt the Land Registrar's report after a protracted dispute dating back over fifty years. The order for the report was made to cure procedural irregularity in previous proceedings, and the report represents the culmination and resolution of the dispute....
Source-derived case information.
- Citation
- [2023] KEELC 21144 (KLR)
- Parties
- Applicant: Republic; Applicant: Gathecha Ng’ang’a Kioi; Respondent: Land Registrar, Kajiado North; Respondent: Director of Survey; Interested Party: Irene M. Onsomu; Interested Party: Philip Kivuva Nzioka
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 30 of 2017
- Procedural Posture
- Miscellaneous Application / Post Report Adoption Ruling
- Outcome
- Land Registrar's report dated September 30, 2020 accepted and adopted as the court's decision.
- Judges
- MN Gicheru
- Legal Topics
- Judicial Review, Adoption of Registrar Report, Land Dispute Resolution, Functus Officio, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Gathecha Ng’ang’a Kioi
Applicant
Land Registrar, Kajiado North
Respondent
Director of Survey
Respondent
Irene M. Onsomu
Interested Party
Philip Kivuva Nzioka
Interested Party
Procedural Posture
Miscellaneous Application / Post Report Adoption Ruling
Legal Issues
- 1 Whether the court is functus officio after the Land Registrar's report.
- 2 Whether the Land Registrar's report should be adopted as the court's decision.
- 3 Whether the absence of an appeal against the judgment of November 14, 2019 precludes further challenge.
Ratio Decidendi
The court held that it would not be fair or just to decline to adopt the Land Registrar's report after a protracted dispute dating back over fifty years. The order for the report was made to cure procedural irregularity in previous proceedings, and the report represents the culmination and resolution of the dispute. The court found that it was not functus officio, as the process of obtaining and considering the report was integral to the final resolution of the matter. The absence of an appeal against the November 14, 2019 judgment further supported the adoption of the report. Accordingly, the court accepted and adopted the Land Registrar's report dated September 30, 2020 as its decision,...
Court Disposition
Land Registrar's report dated September 30, 2020 accepted and adopted as the court's decision.
Orders
- The Land Registrar’s report dated September 30, 2020 is accepted and adopted by the court as the way forward.
Full Case Text
Judgment text and source record
30 paragraphs
Republic & another v Land Registrar, Kajiado North & another; Onsomu & another (Interested Parties) (Environment and Land Miscellaneous Application 30 of 2017) [2023] KEELC 21144 (KLR) (30 October 2023) (Ruling)
Neutral citation: [2023] KEELC 21144 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Miscellaneous Application 30 of 2017
MN Gicheru, J
October 30, 2023
IN THE MATTER FOR AN APPLICATION FOR ORDERS OF JUDICIAL REVIEW BY GATHECHA NG’ANG’A KIOI AND IN THE MATTER OF LAND PARCEL NO. NGONG/NGONG/3524 IN KAJIADO AND THE DECISION MADE BY THE LAND REGISTRAR, KAJIADO NORTH CONCERNING THE SAID PARCEL ON UNKNOWN DATE BUT AFTER 7 TH FEBRUARY 2012 AND IN THE MATTER OF VARIOUS MAPS BY DIRECTOR OF SURVEY REGARDING THE SAID PARCEL OF LAND
Between
Republic
Applicant
and
Gathecha Ng’ang’a Kioi
Exparte Applicant
and
The Land Registrar, Kajiado North
1st Respondent
The Director of Survey
2nd Respondent
and
Irene M. Onsomu
Interested Party
Philip Kivuva Nzioka
Interested Party
Ruling
1. This ruling is on the way forward following the ruling of the Land Registrar’s report dated September 30, 2020. The report by the Land Registrar, Kajiado North was as a result of an order of this court dated November 14, 2019. On February 7, 2023, it was ordered after the consent of all the parties that counsel for the parties file submissions on the way forward. On record, I have submissions filed by Mr Moriasi for the first interested party and those by Mr Mugu for the applicant. Mr Mathuva for the second interested party did not file any submissions.
2. In his Submissions dated 1May 5, 2023, Mr Moriasi, learned counsel for the first interested party has raised the issue namely, that this court is functus officio and it should down its tools and allow the parties to commence the process of the dispute from the registrar’s decision. The court may then deal with the matter as an appeal or a judicial review.
3. On the other hand, Mr Mugu learned counsel for the applicant urges that this court goes ahead to accept the report as its decision because the first interested party did not appeal against the judgment dated November 14, 2019.
4. I have carefully considered the submissions by learned counsel for the parties. I have also perused the entire record which dates back to July 8, 1971. I find that it would not be fair or just to down my tools when this old dispute has finally been resolved. The order of November 14, 2019 requesting for a report of the Land Registrar was not made in vain. It was made because the previous exercise had been tainted with procedural irregularity. The report by the Land Registrar is the culmination of this 52 year old dispute. It is the endgame and it is backed by the judgment dated November 14, 2019. Consequently, the Land Registrar’s report dated September 30, 2020 is accepted and adopted by this court as the way forward.It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 30TH DAY OF OCTOBER, 2023. M.N. GICHERUJUDGE