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Court of AppealPartially AllowedCourt of Appeal at Eldoret (Judgment delivered at Nairobi), appeal against decision of the Environment and Land Court in judicial review proceedings· [2021] KECA 37 (KLR)

Njuguna & 5 others v Sogomi & another (Civil Appeal 12 of 2018) [2021] KECA 37 (KLR)

Court of Appeal of Kenya
23 September 2021
2,688 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st respondent bought the subject property in Eldoret and was registered as proprietor. On 6th December 2012 the District Land Registrar, Uasin Gishu cancelled his registration and on 10th December 2012 registered the appellants. The 1st respondent obtained leave and filed judicial review proceedings seeking certiorari, prohibition and mandamus. The Environment and Land Court granted certiorari quashing the entries cancelling his title and registering the appellants, and further ordered mandamus compelling the Land Registrar to reinstate him. The appellants appealed, contending that the mandamus order usurped the Land Registrar's functions and determined ownership between two competing claims without a hearing. The Court of Appeal, in a single judgment of Nyambuye, Murgor and Sichale JJA, upheld the certiorari order, holding that the cancellation without a hearing breached natural justice and Article 50 of the Constitution. However, it held that the mandamus reinstating the 1st respondent's title went beyond the remit of judicial review, since ownership of the land is contested and requires a substantive suit with viva voce evidence and cross-examination. The appeal was allowed in part: the order of reinstatement was set aside, and as the appeal succeeded in part, each party was ordered to bear their own costs.

Key legal issues

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01

Whether the order of certiorari quashing the cancellation of the 1st respondent's title was properly granted

Holding

Yes - the Land Registrar cancelled the 1st respondent's registration without hearing him, breaching natural justice and Article 50 of the Constitution

Reasoning

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.

p. 5
02

Whether the order of mandamus reinstating the 1st respondent's title was within the remit of judicial review

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Certiorari quashing entries Nos. 4 and 5 (the cancellation of the 1st respondent's registration and registration of the appellants) upheld
  2. 2.The order of mandamus compelling the Land Registrar to reinstate the 1st respondent as registered proprietor is set aside
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 53 Rule 3(1)
  • Law Reform Actsections 8 and 9
  • Constitution of KenyaArticle 50

Cases cited (9)

  • Andrew M'wereria vs Land Registrar, Igembe South District & Another
    [2014] eKLR
  • R vs Lancashire County Council Ex parte
    [1980] 1 KLR 102
  • Super Nova Properties Limited & Another vs District Land Registrar Mombasa & 2 Others
  • Kenya Anti-Corruption Commission and 2 Others (Interested Parties)
  • Radclift Holdings Ltd vs Registrar of Titles & 2 Others
  • Mbogo and other vs Shah
  • Biren Amritlal Shah & Another vs Republic & 30 others
  • Richard Ncharpi Leiyangu vs Independent Electoral and Boundaries Commission & 2 others
    Nyeri Civ Appeal No 18 of 2013
  • Sanghani Investment Limited vs. Officer in Charge Nairobi Remand and Allocation Prison
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.