Republic v Land Registrar, Kajiado North District & 3 others [2018] KEELC 1305 (KLR)
The bottom line
#A Kenyan court quashed a land registrar's boundary decision because he ignored an expert surveyor's report, forcing a fresh, fair determination.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction to handle the dispute herein.
- 2.Whether the proceedings undertaken by the 1st and 2nd Respondent to determine the boundary dispute between the Applicant and the Interested Party was biased, discriminatory and materially flawed amounting to an injustice against the Applicant.
- 3.Whether the ex parte applicant has demonstrated sufficient interest to be granted the orders sought.
- 4.Who shall bear the costs of the application herein.
Key legal issues
#Jurisdiction of the ELC to entertain judicial review over a land boundary dispute
The ELC has jurisdiction; prerogative orders fall within its power to grant relief under section 13(7)(b).
Section 13(1) of the ELC Act confers original and appellate jurisdiction over land disputes under Article 162(2)(b), and section 13(2)(c) & (d) covers land administration and instruments granting interests in land. Section 13(7)(b) empowers the Court to make prerogative orders. Since certiorari and mandamus are prerogative orders, judicial review falls within the Court's ambit.
Whether the Land Registrar's decision was procedurally fair and reasonable
The decision was unlawful; the Registrar failed to consider the District Surveyor's report, amounting to unreasonableness and a breach of natural justice and Article 47.
Judicial review concerns the decision-making process, not merits. Applying the Council of Civil Service Unions standards of illegality, irrationality and procedural impropriety, the court found the Registrar disregarded the expert report of the District Surveyor confirming a 2-metre shortfall on the applicant's parcel and instead directed parties to adopt ground boundaries. Failure to consider relevant material rendered the decision unreasonable and procedurally unfair contrary to Article 47.
Legal principles established
#- Failure by a decision-maker to consider all materials presented before arriving at a finding amounts to unreasonableness and offends the rules of natural justice.
- Where a body takes account of irrelevant considerations, any decision arrived at becomes unlawful.
Court orders
#- 1.The decision/determination of the Land Registrar, Kajiado North District dated 24th August, 2017 or thereabout directing that parties should adopt boundaries as marked on the ground be and is hereby quashed.
- 2.The District Land Registrar Kajiado North District be and is hereby directed to consider the report of the District Surveyor dated the 17th May, 2017 and submit a fresh report to Court, in respect of the boundary dispute herein, within the next 60 days from the date.
- 3.The costs are awarded to the Applicant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 8 & 9 of the Law Reform Act; Order 53 of the Civil Procedure Rules 2010; Sections 13(1), 13(2)(c) & (d) and 13(7)(b) of the Environment and Land Court Act; Article 162(2)(b) of the Constitution
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The decision/ determination of the Land Registrar, KAJIADO NORTH DISTRICT dated 24 th August, 2017 or thereabout directing that parties should adopt boundaries as marked on the ground be and is hereby quashed.
The District Land Registrar Kajiado North District be and is hereby directed to consider the report of the District Surveyor dated the 17th May, 2017 and submit a fresh report to Court, in respect of the boundary dispute herein, within the next 60 days from the date.
failure by the Land Registrar to consider all the materials presented before it, before arriving at a finding, amounts to ‘unreasonableness’ and is centrally to the rules of natural justice.
Judicial review is not concerned with the merits of the decision being challenged but with the decision making process.
Issues in the judgment
#The judgment inconsistently dates the impugned decision and the Registrar's site visit/report, referring to 24th August 2017, 29th August 2017, 17th May 2017 and 18th April 2017 interchangeably.
The judgment attributes the decision to the Land Registrar but the Interested Party describes the decision as made on 18th April 2017 (the date of the site meeting) rather than 24th/29th August 2017.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Land Registrar, Kajiado North District & 3 others [2018] KEELC 1305 (KLR)", Case Analysis (2018). Judicial Review Application No. 130 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1305/eng@2018-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.