[2021] KEELC 1408 (KLR)
The court found that the applicant had established her legal right as the registered proprietor of the suit property and that the respondent, as the custodian of land registers, had a statutory duty to open a new parcel register when the original was lost. The respondent's failure to respond or object, despite...
Source-derived case information.
- Citation
- [2021] KEELC 1408 (KLR)
- Parties
- Applicant: Ann Mumbi Kanya; Respondent: Land Registrar Thika
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 2 of 2019
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application granted
- Judges
- BM Eboso
- Legal Topics
- Land Registration, Mandamus, Lost Parcel Register, Proprietorship, Public Officer Duties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ann Mumbi Kanya
Applicant
Land Registrar Thika
Respondent
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the applicant is entitled to an order of mandamus compelling the respondent to open a new parcel register for Land Parcel Number Ruiru East/Juja East Block 2/326.
- 2 Whether due process must be followed in opening a new land register.
Ratio Decidendi
The court found that the applicant had established her legal right as the registered proprietor of the suit property and that the respondent, as the custodian of land registers, had a statutory duty to open a new parcel register when the original was lost. The respondent's failure to respond or object, despite proper service, left the applicant's case uncontroverted. The court held that the requirements for an order of mandamus were satisfied: the applicant had a clear legal right, the respondent had a corresponding public duty, and there was no alternative remedy. The court further directed that due process under the relevant statutes must be followed in opening the new register.
Court Disposition
application granted
Orders
- An order of mandamus is issued directing the respondent to open a new land parcel register for Land Parcel Number Ruiru East/Juja East Block 2/326.
- Due process under the relevant statutes shall be adhered to in opening the new register.
Full Case Text
Judgment text and source record
26 paragraphs
THE REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT THIKA
JUDICIAL REVIEW NO. 2 OF 2019
ANN MUMBI KANYA........................APPLICANT
-VERSUS -
LAND REGISTRAR THIKA.........RESPONDENT
JUDGMENT
1. Pursuant to the leave granted by Ngugi J on 28/2/2018, the ex-parte applicant, Ann Mumbi Kanya, brought a substantive notice of motion dated 7/3/2018, seeking an order of mandamus compelling the respondent to open a new parcel register indicating that she was the proprietor of Land Parcel Number Ruiru East/juja East Block 2/326. The motion was supported by the exparte applicant’s verifying affidavit sworn on 22/1/2018 and statutory statement of even date.
2. The exparte applicant’s case was that she was the registered proprietor of Land Parcel Number Ruiru East/Juja East Block 2/326 measuring 1. 300 hectares. Through a letter dated 1/10/2014, addressed to the Government Printer, the respondent acknowledged that the applicant was the registered proprietor of the land and indicated that the parcel register relating to the said land was lost. Further, the respondent intimated his intention to open another parcel register. The respondent had since then refused/failed and/or neglected to open the new parcel register. There was no dispute relating to ownership of the land.
3. On 27/11/2018, Meoli J transferred the suit to Thika Environment and Land Court. The suit was heard before me in the virtual court on 21/10/2021 and now falls for determination.
4. From the affidavit of service sworn by Prof Kiama Wangai on 28/5/2018, it is indicated that both the respondent and the Attorney General were served with the motion. The respondent did not, however, respond to the motion. Further, when the suit came up for hearing on 27/9/2021, Mr Njagi, a litigation counsel in the Environment and Land Section of the Attorney General’s Chambers, requested for 7 days within which to take instructions on the motion. The request was granted and a fresh hearing date was set. No response was subsequently filed. Further, there was no attendance on part of the respondent on the day the suit subsequently came up for hearing. Consequently, hearing proceeded ex parte.
5. Urging the court to grant the motion, Prof Wangai submitted that the exparte applicant’s case was as set out in the suit papers. He further submitted that there was no one else laying claim to the suit property. He urged the court to grant the relief.
6. I have considered the motion. It is regrettable that the respondent elected not to respond to the motion. Even if there was no one else laying claim to the suit property, given that the respondent was and remains the custodian of land registers, his response would shed light on the circumstances under which the parcel register got lost.
7. In the absence of any objection or response from the respondent, I will grant the notice of motion dated 7/3/2018 in the following terms:
a. An order of mandamus is hereby issued, directing the respondent and/or the relevant land registrar, to open a new land parcel register relating to Land Parcel Number Ruiru East/ Juja East Block 2/326.
b. The due process stipulated under the relevant statutes shall be adhered to while opening the new land register.
c. There shall be no order as to costs of this suit.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 22ND DAY OF OCTOBER , 2021
B M EBOSO
JUDGE
In the presence of: -
Prof Kiama Wanga for the Ex-parte Applicant
Court Assistant: Lucy Muthoni
B M EBOSO
JUDGE