Njuguna & 5 others v Sogomi & another (Civil Appeal 12 of 2018) [2021] KECA 37 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a land registrar cannot cancel your title without a hearing, but courts cannot settle land ownership disputes through judicial review alone.
What this practically means
#Executive summary
#Key legal issues
#Whether the order of certiorari quashing the cancellation of the 1st respondent's title was properly granted
Yes - the Land Registrar cancelled the 1st respondent's registration without hearing him, breaching natural justice and Article 50 of the Constitution
The court found it undisputed that the 1st respondent's transfer was registered, then cancelled on 6th December 2012, and the appellants registered on 10th December 2012, all without the 1st respondent being heard. The right to a fair hearing under Article 50 was breached. The trial judge therefore correctly exercised discretion in quashing entries Nos. 4 and 5.
Whether the order of mandamus reinstating the 1st respondent's title was within the remit of judicial review
No - the mandamus order went beyond judicial review, as ownership of the land is contested and must be determined in a substantive suit after a full hearing
The court held that judicial review is limited to the decision-making process and cannot resolve competing claims of ownership, which require viva voce evidence and cross-examination. By ordering reinstatement, the trial judge effectively determined ownership in favour of the 1st respondent without hearing the rival claimants. That order exceeded the proper scope of judicial review and had to be set aside.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits, and where ownership of land is contested the dispute must be resolved in a substantive suit, not by mandamus reinstating a cancelled title
- An appellate court will not interfere with a single judge's exercise of discretion unless it was exercised on wrong principles or produced a clearly wrong result
- A title may not be cancelled by a land registrar without affording the registered proprietor a hearing
Court orders
#- 1.Certiorari quashing entries Nos. 4 and 5 (the cancellation of the 1st respondent's registration and registration of the appellants) upheld
- 2.The order of mandamus compelling the Land Registrar to reinstate the 1st respondent as registered proprietor is set aside
- 3.Each party to bear their own costs
- On appeal from
- Environment and Land Court
- Not stated in the judgment
- Jurisdiction invoked
- Appeal to the Court of Appeal from the Environment and Land Court; judicial review proceedings brought under Order 53 Rule 3(1) of the Civil Procedure Rules 2010 and sections 8 and 9 of the Law Reform Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna & 5 others v Sogomi & another (Civil Appeal 12 of 2018) [2021] KECA 37 (KLR)", Case Analysis (2021). Court of Appeal at Eldoret (Judgment delivered at Nairobi), appeal against decision of the Environment and Land Court in judicial review proceedings. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/37/eng@2021-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.