[2013] KEHC 6577 (KLR)
The court declined to issue an order of mandamus because the remedy is discretionary and not available where there are unresolved allegations of fraud. The presence of a dispute regarding the authenticity of the title and the non-participation of a third party (the original owner) meant that the matter was not...
Source-derived case information.
- Citation
- [2013] KEHC 6577 (KLR)
- Parties
- Applicant: Republic; Respondent: Registrar, Thika District Lands Registry; Respondent: Hon Attorney General; Interested Party: Rahab Wanja Maina; Applicant: David Irungu Maina; Applicant: Loise Njeri Irungu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 73 of 2010
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application dismissed
- Judges
- DAS Majanja
- Legal Topics
- Judicial Review, Mandamus, Land Transfer Disputes, Allegation of Fraud
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Registrar, Thika District Lands Registry
Respondent
Hon Attorney General
Respondent
Rahab Wanja Maina
Interested Party
David Irungu Maina
Applicant
Loise Njeri Irungu
Applicant
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether an order of mandamus should issue to compel the Registrar to register the transfer of Land Parcel Number Ruiru East Block 5/103.
- 2 Whether allegations of fraud in the transaction preclude the grant of mandamus.
Ratio Decidendi
The court declined to issue an order of mandamus because the remedy is discretionary and not available where there are unresolved allegations of fraud. The presence of a dispute regarding the authenticity of the title and the non-participation of a third party (the original owner) meant that the matter was not suitable for resolution by judicial review. The court held that the issue of fraud must be litigated in ordinary proceedings to determine the rights of the parties to the suit property. Accordingly, the application was dismissed.
Court Disposition
application dismissed
Orders
- The application for an order of mandamus is dismissed.
- The issue of fraud to be litigated in ordinary court proceedings.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
MISC. APPL. NO. 73 OF 2010
BETWEEN
REPUBLIC ………………………………………………… APPLICANT
AND
THE REGISTRAR
THIKA DISTRICT LANDS REGISTRY..................1ST RESPONDENT
THE HON ATTORNEY GENERAL ........................2ND RESPONDENT
AND
RAHAB WANJA MAINA………........................INTERESTED PARTY
AND
EX-PARTE APPLICANTS
DAVID IRUNGU MAINA
LOISE NJERI IRUNGU
JUDGMENT
This matter came up for hearing today, 9th September 2013, but when the matter was called out for hearing counsel for the ex-parte applicant, who was present earlier in the morning was not present in court. I therefore proceeded to hear the matter in presence of the respondents’ counsel.
The issue in this matter is whether the court should issue an order of mandamus to compel the registrar, Thika Lands Registry, to register and or effect the transfer dated 18th October 2004 transferring Land Parcel Number Ruiru East Block 5/103 from Margaret Wanjiru Kahuru to David Irungu Maina and Loise Njeri Maina.
I have considered all the material before the court including the verifying affidavit and the replying affidavit sworn by the District Land Registrar. The ex-parte applicants’ case is that they purchased the suit property from the registered owner, one Margaret Wanjiru Kahuru. After completing the documentation, they lodged the transfer for registration. The application was rejected by the Land Registrar who stated that the reason for declining registration was that there was suspected fraud in the subject transaction arising out of a forged title.
An order of mandamus is a discretionary remedy and in view of the allegations of fraud and the fact that the third party has not participated in these proceedings, I am constrained to dismiss the matter. I also take the view that the issue of fraud must be litigated in ordinary court proceedings in order to determine the rights of the parties to the suit property.
Orders accordingly.
DELIVERED and DATED at NAIROBI this 9th day of September 2013.
D.S. MAJANJA
JUDGE
Mr Wamotsa, Litigation Counsel, instructed by the State Law Office for the respondents.