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ELCAllowedJudicial Review Application No. 24 of 2011· [2016] KEELC 783 (KLR)

Republic v Commissioner of Lands & 2 others Ex parte Antiocha Limited & 2 others [2016] KEELC 783 (KLR)

High Court of Kenya
24 June 2016
1,294 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court restored a company's land title after the land registry cancelled it without notice, confirming registries cannot cancel registered titles on their own.

What this practically means

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Executive summary

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The Ex-parte Applicant, a company registered as proprietor of plot Chembe/Kibabamshe/409 since 2001, sought judicial review orders of mandamus and prohibition after discovering through an official search in April 2011 that the plot had been allocated to the 2nd Interested Party and subsequently transferred to the 1st Interested Party. The Applicant contended it was never notified of the cancellation of its title and that the Respondents lacked authority to issue a second title. The 1st and 2nd Respondents filed Grounds of Opposition asserting res judicata based on prior civil suits, while the Interested Parties raised a preliminary objection (dismissed by Omondi J) and argued that mandamus could not issue and that certiorari would have been the appropriate remedy. Neither the Respondents nor the Interested Parties filed Replying Affidavits, leaving the Applicant's facts uncontroverted. The court, Angote J, held that the Respondents, as custodians of the register under the repealed Registered Land Act, lacked legal mandate to cancel or revoke a registered title, and that cancelling the title without notifying the Applicant violated Article 47 of the Constitution and the rules of natural justice, relying on Onyango Oloo v Attorney General and R v Nairobi City County Ex parte ELMC Ltd. The court found the cancellation illegal and ultra vires, allowed the application dated 24th May 2011 as prayed, and awarded the Applicant costs at both the leave and substantive motion stages against the Respondents and Interested Parties.

Key legal issues

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01

Whether the Respondents' cancellation of the Applicant's title and issuance of a new title to the Interested Parties was lawful

Holding

The cancellation and re-issuance was illegal and ultra vires as the Respondents lacked mandate and denied the Applicant a hearing.

Reasoning

The Respondents are custodians of the register under the repealed Registered Land Act and have no power to cancel or revoke a registered title. In purportedly exercising such non-existent powers, they failed to inform the Applicant of the intended cancellation, thereby breaching the rules of natural justice and Article 47 of the Constitution on fair administrative action. The uncontroverted facts supported the Applicant's case, and the resulting register bore defects of justice.

p. 4
02

Whether failure to afford the Applicant a hearing vitiated the administrative action

Holding

Yes; failure to invite the Applicant to defend its title violated Article 47 and natural justice.

Reasoning

The Court of Appeal in Onyango Oloo v Attorney General emphasized that decisions affecting others must be made fairly, and a decision in breach of natural justice cannot be cured by showing the same decision would have been reached. Failure to give reasons and invite comment before withdrawing the Applicant's title fell foul of Article 47 of the Constitution and the rules of natural justice.

p. 4

Legal principles established

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  • Respondents under the repealed Registered Land Act do not have legal mandate to cancel or revoke a registered title.
  • A decision made in breach of natural justice is void regardless of whether the same outcome would have been reached.
  • A benefit cannot be withdrawn until reasons are given and the affected person has an opportunity to comment.

Court orders

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  1. 1.Judicial review orders of mandamus directed at the Respondents to revoke, annual and/or cancel the leasehold interest of title to plot No. Chembe/Kibabamshe/409 granted to the 2nd Interested Party on 1st September 2010 and transferred to the 1st Interested Party on 28th April 2011, and to reinstate and/or retain the Ex-parte Applicant's records of ownership and title to Plot No. Chembe/Kibabamshe/409 at Kilifi District Land Registry
  2. 2.Judicial review orders of prohibition against the Respondents and Interested Parties from interfering with the Ex-parte Applicant's occupation, possession, ownership and use of, or dealing with, plot No. Chembe/Kibabamshe/409 and from registering any dealings with regard to the title thereto
  3. 3.Costs of the Judicial Review Application at the leave stage and at the substantive motion stage borne by the Respondents and the Interested Parties

Authorities

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Legislation

  • Registered Land Act (repealed)
  • Constitution of Kenya, 2010Article 47

Cases cited (2)

  • Onyango Oloo Vs Attorney General
    (1986-1989) EA 456
  • R vs Nairobi City County Ex parte ELMC LTD
    (2014) eKLR
Jurisdiction invoked
Judicial review jurisdiction over administrative action, including Article 47 of the Constitution

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, "Republic v Commissioner of Lands & 2 others Ex parte Antiocha Limited & 2 others [2016] KEELC 783 (KLR)", Case Analysis (2016). Judicial Review Application No. 24 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/783/eng@2016-06-24

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