Republic v Registrar Thika District LandsRegistry & Attorney General Ex-Parte David Irungu Maina, Loise Njeri Irungu & Rahab Wanja Maina [2013] KEHC 6577 (KLR)

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.