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Court of AppealPartially AllowedCivil Appeal No. 312 of 2012· [2014] KECA 348 (KLR)

Emfil Limited v Registrar of Titles Mombasa & 2 others [2014] KECA 348 (KLR)

Court of Appeal
18 July 2014
HOH. M. OkwenguASAsike-MakhandiaFSF. Sichale
5,086 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that land registries cannot revoke title deeds on their own—government must go through the courts or lawful compulsory acquisition.

What this practically means

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Executive summary

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Emfil Limited purchased land from Associated Sugar Company in 1987, subdivided it into 143 parcels with government consent, and enjoyed possession until 2007 when intruders claiming settlement allocations encroached. The High Court in a civil suit (Sergon J) declared the intruders' titles null and void. In 2011 the Registrar of Titles published Gazette Notice No. 6652 purporting to revoke Emfil's titles to 138 subdivisions as land reserved for public purposes. Emfil obtained leave and filed a judicial review motion seeking certiorari, mandamus and prohibition. The High Court (Muriithi J) found that the Registrar had no power to revoke titles and that the notice breached Article 47, but declined the remedies, converted the proceedings into a Bill of Rights application under Articles 22 and 40, and directed that allocation to squatters proceed subject to conditions. The Court of Appeal allowed the appeal. It held that the judge's conversion of the judicial review proceedings into a constitutional petition was unwarranted, distinguished Githunguri, and reaffirmed that Article 159 cannot justify ignoring a procedure deliberately chosen by a litigant. The judge had taken into account unsworn allegations of fraud made from the Bar despite the respondents filing no replying affidavits, and relied on improperly obtained locus in quo observations. The court held that settlement of squatters must follow the law, through court-ordered revocation or lawful acquisition, and that the suit properties remained private land as the original grant was never revoked. The appellate court set aside the High Court orders, granted certiorari, mandamus and prohibition as prayed, and awarded the appellant costs of the appeal and the lower court suit.

Key legal issues

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01

Conversion of judicial review proceedings into a Bill of Rights application

Holding

The trial judge erred in converting the judicial review motion into a constitutional petition; the appellant had deliberately chosen judicial review and compulsory acquisition was not a relief sought in the statutory statement

Reasoning

The Githunguri deeming practice arose under the repealed Constitution and was in the accused's interest there; here the conversion only benefited absent squatters, re-opened proceedings at judgment stage and was prejudicial to the appellant, who had specifically elected the Order 53 remedy.

p. 5
02

Exercise of discretion in refusing judicial review remedies

Holding

The judge failed to exercise his discretion judiciously by taking into account unsupported allegations from the Bar and relying on improperly obtained locus in quo observations

Reasoning

Despite finding the gazette notice unlawful and a breach of Article 47, the judge refused remedies on the basis of unsworn fraud allegations and squatter interests unsupported by evidence; the appellant's titles stood unchallenged, backed by the civil suit judgment, making refusal of remedies unreasonable.

p. 7
03

Public interest in settling squatters versus rule of law

Holding

Settlement of squatters is a matter of public interest but must be pursued in accordance with the law, through court-ordered revocation or lawful acquisition; the rule of law prevails over administrative expediency

Reasoning

The Government chose neither revocation through the courts nor acquisition under the Constitution and Land Acquisition Act, but acted in clear violation of the law. Judicial review exists precisely to check such excesses of power and ensure the rule of law prevails.

p. 7
04

Status of the suit properties after purported revocation of sub-titles

Holding

Even assuming revocation was valid, the suit properties remained private land since the original grant was not revoked, and could not revert to Government as un-alienated land for allocation to squatters

Reasoning

The revocation of the sub-titles did not revert the parcels to Government; the Government could therefore pass no good title to the squatters, and no question of squatters' legitimate expectations arose before the court.

p. 7

Legal principles established

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  • The Registrar of Titles has no power to revoke or cancel titles to land; government may revoke titles only through a court order or lawful compulsory acquisition under the Land Acquisition Act
  • Article 159 does not permit a court to ignore a specific procedure deliberately chosen by a litigant, nor to disregard the rules of evidence
  • Relief in judicial review is confined to the relief sought in the statutory statement filed under Order 53 Rule 2
  • Where respondents to a judicial review application fail to file replying affidavits, the applicant's unchallenged affidavit evidence stands, and allegations made from the Bar cannot be taken into account
  • Fraud must be strictly pleaded and proved to a standard higher than the balance of probabilities
  • An appellate court may interfere with the exercise of discretion where the trial judge misdirected himself or was clearly wrong, resulting in injustice

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders made by the learned judge on 7th September 2012 set aside
  3. 3.Substituted an order allowing the appellant's motion dated 9th August 2011, issuing orders of certiorari, mandamus and prohibition as prayed in the motion
  4. 4.Costs of the appeal and the suit in the lower court awarded to the appellant

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159
  • Constitution of Kenya 2010Article 22
  • Constitution of Kenya 2010Article 23
  • Constitution of Kenya 2010Article 40(3)
  • Constitution of Kenya 2010Article 47
  • Registration of Titles Act Cap 281 (repealed)Section 23
  • Registration of Titles Act Cap 281 (repealed)Sections 59 and 60
  • Land Acquisition Act Cap 296
  • Evidence Act
  • Civil Procedure RulesOrder 53 Rule 3(1) and Rule 4
  • Civil Procedure RulesOrder 21 Rules 1 & 4
  • Repealed Constitution of KenyaSections 67, 77(1) and 84(1)

Cases cited (9)

  • Ocean View Plaza Limited v Attorney General
    [2002] 2 KLR 277
  • Githunguri v Attorney General No. 2
    [1986] KLR 1
  • Pastoli vs. Kabale District Local Government Council and Others
    [2008] 2 EA 300
  • Attorney general v Sumair Bansraj
    [1985] 38 WLR 286
  • Muslims for Human Rights (Muhuri) & 2 Others v Attorney General & 2 Others
    [2011] eKLR
  • Mbogo & Another v Shah
    [1968] EA 93
  • Chotram v Nazari
    [1984] KLR 327
  • R v Chief Constable of North Wales exparte Evans
    [1982] 1 WLR 1155
  • Emfil Limited vs. Hamisi Mwalimu & 9 Others (Mombasa HCCC No. 181 of 2007)
On appeal from
High Court of Kenya at Mombasa
H.C. Misc. Appl. (JR) No. 84 of 2001
Jurisdiction invoked
First appellate jurisdiction over the High Court (judicial review appeal); Constitution of Kenya 2010, Article 159 invoked on defects of form

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Emfil Limited v Registrar of Titles Mombasa & 2 others [2014] KECA 348 (KLR)", Case Analysis (2014). Civil Appeal No. 312 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/348/eng@2014-07-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.