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ELCDismissedNotice of Motion dated 10th April, 2017 (judicial review application, Kajiado)· [2017] KEELC 1138 (KLR)

Republic v Land Registrar Kajiado North District ex parte Peter Nkanai Ndumbe [2017] KEELC 1138 (KLR)

Environment and Land Court
1 November 2017
COChristine Ochieng
1,771 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The ex parte applicant, registered owner of KAJIADO/LOODARIAK/1848, sought judicial review orders of certiorari and mandamus to compel the Registrar of Lands to deregister a Charge registered over the suit land, alleging the Charge was defective for lack of spousal consent, an undated and improperly drawn affidavit in lieu of spousal consent, absence of Land Control Board consent, and missing certification, and that the Registrar had failed to conduct due diligence before registration. The applicant admitted he had given his title deed to a friend, Edward Njoroge, to secure a Kshs. 2 million loan, subject to consulting his family. The court framed a single issue: whether the Registrar's decision to register the Charge was a mistake amounting to an injustice. Applying the principle that judicial review concerns the decision-making process rather than the merits, the court held that charging land to secure a loan is a private affair in which the Land Registrar, who comes at the tail end of the process, is not involved and cannot be blamed for registering a Charge presented to him. The applicant's own signature appeared on the Charge and he swore an affidavit stating he was single, so the question of spousal consent under section 79(3) of the Land Act did not arise. Citing Republic v Kenya Power & Lighting, the court found the applicant had failed to exhibit the Registrar's actual sins; any alleged forgery could be reported to the police or litigated in a substantive suit. The Notice of Motion was dismissed with no order as to costs.

Key legal issues

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01

Whether the Land Registrar's registration of the Charge was amenable to judicial review as a mistake amounting to injustice

Holding

The application fails because the ex parte applicant did not demonstrate any illegality in the Registrar's decision-making process; the dispute over the Charge's defects concerns private dealings over security for a loan, ventilable in a substantive suit.

Reasoning

The court noted the applicant admitted giving his title deed to his friend, signed the Charge document, and swore an affidavit stating he was single, so spousal consent under section 79(3) of the Land Act did not arise. The Registrar merely registers charges presented to him and is not concerned with the private negotiations preceding registration. Judicial review examines the process, not the merits, and the applicant failed to exhibit the Registrar's actual sins.

p. 3
02

Whether lack of spousal consent rendered the Charge defective and unregistrable

Holding

The spousal consent question did not arise because the applicant himself declared in the Charge affidavit that he was single, a bachelor who had never been married.

Reasoning

Section 79(3) of the Land Act requires a charge of a matrimonial home to be executed by the chargor and any spouse living in the matrimonial home. But the applicant's own sworn affidavit at paragraph 3 indicated he was single and had never married, and the Charge document bore his signature which he never alleged was forged. The court declined to entertain defects he alleged only after the chargee moved to realize security.

p. 2

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision itself.
  • An applicant in judicial review proceedings must exhibit the actual sins of the tribunal, not merely allege illegality, unreasonableness or breach of natural justice.

Court orders

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  1. 1.The Notice of Motion dated 10th April, 2017 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 23
  • Land ActSection 103(1)(c)
  • Land ActSection 104
  • Land ActSection 79(3)
  • Land Registration ActSection 14
  • Land Registration ActSection 24
  • Land Registration ActSection 56
  • Civil Procedure RulesOrder 53 Rule 1(2)
  • Fair Administrative Action ActNo. 4 of 2015

Cases cited (2)

  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Republic vs. Kenya Power & Lighting Company Limited & Another
    [2013] eKLR
Jurisdiction invoked
Articles 10 and 23 of the Constitution; Sections 103(1)(c) and 104 of the Land Act; Sections 14, 24 and 56 of the Land Registration Act; Order 53 Rule 1(2) of the Civil Procedure Rules; Fair Administrative Action Act No. 4 of 2015

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 Land Registrar Kajiado North District ex parte Peter Nkanai Ndumbe [2017] KEELC 1138 (KLR)", Case Analysis (2017). Notice of Motion dated 10th April, 2017 (judicial review application, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1138/eng@2017-11-01

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