COVID-19 NOT AN ISSUE

Court orders CS Karoney to re-open land registries

Minister directed to set a phase re-opening to render services effectively without compromising health protocols

In Summary
  • The judge further prohibited Karoney from closing the two registries following a case filed by advocate Patrick Ngunjiri. 
  • Karoney had argued that the registries were not closed but rather the operations were scaled down for reasons that were partly administrative. 

 

Lands Cabinet Secretary Farida Karoney Image: FILE
Lands Cabinet Secretary Farida Karoney Image: FILE

The High Court has directed Lands CS Farida Karoney to re-open both the Nairobi District and Central Land Registries to members of the public. 

Justice James Makau said Karoney should set a phased re-opening, even if it is half a day due to Covid-19, and render land registry services to the public in a manner that is effective without compromising the health safety protocols. 

The judge prohibited the minister from closing the two registries following a case filed by advocate Patrick Ngunjiri. 

Ngunjiri filed the case last year arguing that the closure of the land registries by the CS for purposes of auditing land records in Nairobi City County, violated her constitutional duty to grant access to services in all parts of the country. 

The petitioner argued that it was not constitutional, or procedurally fair to close all services at Nairobi and Central Land registries for an indeterminate period. He suggested that it would have been better to carry out an audit in a phased manner as opposed to a blanket closure. 

But Karoney argued that the registries were not closed but rather the operations were scaled down for reasons that were partly administrative. 

The CS had explained that the closure of land registries was because of Covid-19 pandemic.

But the judge on Tuesday said the Covid-19 measures have not been shown by Karoney to have required that government ministries, departments and offices be closed in observing measures announced by the Ministry of Health.

The court observed that the ministerial decision by the CS was made unilaterally without consultation and in complete violation of Ngunjiri and Kenyan public right to administrative action.

Justice Makau said while there might have been need to audit land records in Kenya, the CS did not act in accordance with the Constitution nor was her action lawful, or procedurally fair to close all services at the registries for an indeterminate period. 

“No plausible explanation has been offered as to why the audit could not have been carried out in a phased manner as opposed to blanket closure nor why there was no public participation and compliance with the law, even during the Covid-19 period,” he said.

The court said Covid-19 is not a justification for any constitutional violation of individual bills or rights as provided for by the  Constitution. 

Makau also said the CS was under a constitutional and legal obligation to allow Ngunjiri and other Kenyans to access land registry services. 

He faulted the CS for failing to comply with the Constitution as regards public participation before proceeding to have registries closed. Makau said Karoney failed to comply with Article 10 of the Constitution as she did not involve the public. 

 “The decision to close Nairobi District and Central Land Registries or deciding to be offering delayed services, was short of what amounts to good governance, integrity, transparency and accountability as no reasons in writing have been given,” he said. 

 -Edited by SKanyara