1. The Ex parte applicant filed Chamber Summons dated 4th June 2024 seeking the following orders:
1. Leave do issue to the Applicant to apply for: -
a) An order of MANDAMUS to compel the Respondent to perform its statutory duties under Section 14 of the Land Registration Act No. 3 of 2012 by registering the lease for the creation of a parcel file for NYERI/MUNICIPALITY BLOCK 1/63
b) An order of MANDAMUS to compel the respondent to register the applicant as the proprietor and issue a certificate of lease in his favour for parcel NYERI/MUNICIPALITY BLOCK 1/163
2. The Application was supported by the affidavit and statement of facts of the Applicant. The grounds in support of the application are that the Applicant was duly allotted the parcel of land known as Nyeri/Municipality Block 1/163 on 4/6/2003.
3. That upon compliance with conditions set out in the letter of allotment, the Cabinet Secretary, pursuant to Sections 160 and 161 of the Land Act, issued the Applicant with a lease on 7/7/2023. The Applicant stated that he presented the lease for registration by the Respondent who is enjoined under Section 14 of the Land Act to register. The fees payable for registration of the same was assessed on 2/8/2023.
4. However, he was not allowed to pay the same, as the Respondent informed him that he was to obtain clearance from the Ethics and Anti-Corruption Commission.
The Applicant deposed that he gave the Respondent sufficient time to undertake inter-governmental consultations and even wrote a reminder but the respondent is yet to exercise its statutory mandate to register him as the proprietor of the suit property.
5. The Applicant states that the Respondent has refused failed and /or neglected to register the lease and has not given any valid reason for failure to perform his statutory duty.
6. The Applicant’s case is that he has been in occupation of the suit premises since 1988 to date and is being denied the right to enjoy his property.
The Respondent’s Replying Affidavit
7. N.G. Gathaiya, the Land Registrar-Nyeri County who is the Respondent named herein swore a replying affidavit in response to the Chamber Summons Application. He deponed that it is not in dispute that the Applicant was allocated the parcel of land number Nyeri/Municipality Block 1/163 by the then Commissioner of Land. Further, their offices received the lease documents and released the same to the Applicant for execution.
8. The Respondent’s position is that the requisite fees were assessed, but as a matter of due diligence, the office of the Land Administration sought advice from the Ethics and Anti-Corruption Commission(EACC) on whether there was any pending investigation before registration could be effected.
9. The office received a response from the Commission, indicating that there were pending investigations on Government House HG44, that was irregularly alienated, and which house sits on Land Parcel Number Nyeri Municipality Block 1/163.
10. From the foregoing, the Respondent states that it is clear that there are ongoing investigations and that their preliminary finding is that the suit land was not available for allocation. They are of the opinion that the Ethics and Anti-Corruption Commission(EACC) should be given time to finalise investigations before the lease is registered, considering that the parcel of land forms part of public land, which ordinarily ought not to be allocated to an individual.
The Applicant’s Submissions
11. Counsel for the Applicant submitted that the Applicant was allotted the suit land lawfully, complied with the conditions set out in the letter and was issued with a lease for registration dated 7/7/2023, pursuant to Sections 160 and 161 of the Land Act.
12. It is submitted that the delay in having him registered as the proprietor of the suit land due to pending investigation is inordinate and unreasonable, and has been compelled to request the respondent to act in accordance with its statutory power and register the Applicant’s lease.
13. It was highlighted that the Respondent has not given indication when the investigations by the Ethics and Anti-Corruption Commission are to be completed.
14. Submitting that so far no illegality has been demonstrated causing failure of exercise of the Respondent’s powers to register the Applicant, Counsel highlighted that the Fair Administrative Action Act provides that it would only be fair for the Applicant to receive written reasons for the Respondent’s failure to act.
15. Noting that all the conditions were met as per the letter of allotment for the suit property, Counsel cited and relied on the holding in the case of Torino Enterprises Limited vs Hon.Attorney General(2023)KESC 79(KLR).
16. Regarding the Government House Nyeri/HG/44, the Applicant submits that the process of its allotment commenced vide a circular letter dated 24.1.2007, which indicated that the house was situated on Land Registration Block 1/1065, which was an irregular subdivision of the suit property Nyeri/Municipality 1/163.
17. The Applicant challenged the impugned sub-division through High Court Miscellaneous Civil Application No.406 of 2022. Vide orders dated 22.6.2002 issued by Lady Justice Ang’awa, the subdivision exercise was stopped. The Applicant then wrote to the then Permanent Secretary, Ministry of Housing on 20.3.2007, challenging the intended illegal selling of the Applicant’s plot and development. The office of the Permanent Secretary confirmed that the market value of the suit property was inclusive of the Government House, this validation had been regularised.
18. It was submitted that the Ethics and Anti-Corruption Commission can institute and defend cases should it find that the Commissioner of Lands erred in allocating the land to the applicant herein, but as things are, the Applicant has been left in limbo.
19. Thus, the Applicant relied on the authority in the case of Commissioner of Lands & Attorney General v. Kithinji Murugu M’agere(2014)KEHC 7190(KLR) and prayed that the orders to be granted as prayed.
The Respondent’s Submissions
20. The Respondent filed a written submission reiterating the contents of their affidavit that the Applicant was indeed allotted the suit property. However, as a matter of caution and due diligence, the Land Administration Office wrote to the Ethics and Anti-Corruption Commission on 17th October 2023, seeking their advice on whether there was any active investigation pending on the land, because it had previously featured in the Ndung’u report as having been irregularly and illegally alienated. The reason the Respondent held off on registration of the lease was to await the conclusion of the investigations by EACC.
21. In response to the Applicant’s complaint of delay in conducting investigations and registering the Lease, the Respondent submits that the Ethics and Anti-Corruption Commission is an independent commission and that the Constitution does not stipulate timelines within which it should complete investigations, only that they be done without unreasonable delay as stipulated under Article 259(8).
22. Since the Lease was presented for registration in October 2023, it is submitted that the time frame since then and the institution of this suit cannot be said to be an unreasonable delay. Relying on the holding in the case of Michael Sistu Mwaura Kamau vs EACC & 4 others(2017)eKLR, they contend that hurrying the Commission has a direct implication on the quality of investigations.
23. They submit that the setting of the deadlines within which the Commission should conclude investigations and submit reports to the Office of the Director of Public Prosecutions can reasonably be perceived as undue interference, as they quoted from the authority in the case of In Re The Matter of the Interim Independent Electoral Commission. Const App. No.2 of 2011.
24. In conclusion, it is their submission that the EACC should be given adequate time to finalize the investigations without any interference and pray for the dismissal of the Applicant’s Chamber Summons.
Analysis and Determination
25. The Court has considered the application herein, the reply filed and submissions of Counsel for the parties. The issue for determination is whether the Applicant is entitled to an order of leave to file judicial review proceedings seeking an order of mandamus to compel the Respondent to perform its statutory duties under Section 14 of the Land Registration Act No. 3 of 2012 by registering the lease for the creation of a parcel file for NYERI/MUNICIPALITY BLOCK 1/63.
26. He also seeks leave to file judicial review proceedings seeking an order of mandamus to compel the respondent to register him as the proprietor and issue a certificate of lease in his favour for parcel NYERI/MUNICIPALITY BLOCK 1/163.
27. Waki J (as he then was) elaborated on the reason for filing an application seeking leave before filing for orders of judicial review in Republic v County Council of Kwale & another ex parte Kondo & 57 others (1998) 1 KLR (E&L) as follows:
“The purpose of the application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly, to ensure that the applicant is only allowed to proceed to the substantive hearing. If the court is satisfied that there is a case fit for further consideration. Leave may only be granted, therefore, if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant, the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for Judicial Review. It is an exercise of the court’s discretion, but as always, it has to be exercised judicially.”
28. From the foregoing, it is clear that at the leave stage the court need not go into the matter in depth, only considering whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for Judicial Review.
29. It has also been argued that access to justice and the right to seek orders of judicial review is set out under Article 48 of the Constitution of Kenya and gies to the Courts constitutional supervision of public authorities and involves a challenge to the legal validity of their decisions. Mativo J(as he then was) expressed thus in the case of Republic v Kenya Revenue Authority, Commissioner Ex parte Keycorp Real advisory Limited (2019) eKLR:
“Court decisions should boldly recognize the Constitution as the basis for Judicial Review. Judicial review is now a constitutional supervision of public authorities involving a challenge to the legal validity of the decision. Time has come for our courts to fully explore and develop the concept of Judicial Review in Kenya as a constitutional supervision of power and develop the law on this front. Courts must develop Judicial Review jurisprudence alongside the mainstreamed “theory of a holistic interpretation of the Constitution. Judicial Review is no longer a common law prerogative, but is now a constitutional principle to safeguard the constitutional principles, values and purposes. The Judicial Review powers that were previously regulated by the common law under the prerogative and the principles developed by the Courts to control the exercise of public power are now regulated by the Constitution.”
30. The Applicant has demonstrated that he was issued by the Respondent with a lease document dated 7/7/2023. The Respondent has admitted as much. The Applicant has also demonstrated that the lease document has not been registered to date. As stated earlier and as found in the case mentioned above, Republic v County Council of Kwale & another ex parte Kondo & 57 others (supra), at the leave stage the court need not go into the matter in depth. The court is satisfied that there is a case fit for further investigation at a full inter partes hearing of the substantive application for Judicial Review, at which time all necessary interested parties will be joined to the application.
31. The final orders of the Court are that the application dated 4th June 2024 is hereby allowed as prayed. The substantive application shall be filed within 21 days from the date of this ruling.
Delivered, Dated and Signed at Kitui on 1st day of August 2025