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ELCAllowedJudicial Review Application - Notice of Motion dated 11th July 2016· [2017] KEELC 1881 (KLR)

Republic v Chief Land Registrar; Mburu & 3 others (Interested Parties); Chemmuttut (Ex parte) (Judicial Review Application 3 of 2016) [2017] KEELC 1881 (KLR)

Environment and Land Court
19 September 2017
3,200 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that the National Land Commission's decision to revoke unlawfully acquired public land titles is binding, and the Land Registrar must implement it.

What this practically means

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Executive summary

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The Ex-parte Applicant, Hon. Justice Charles P. Chemmuttut, applied by Notice of Motion dated 11th July 2016 under Order 53 Rule 1 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act for an order of mandamus compelling the Chief Land Registrar to revoke Grant Numbers CR. 55799, CR. 55798, CR. 55781 and CR. 55782 over LR. MN/III/432-435 and to issue him a Certificate of Lease/Title. The land had been allotted to him in 1992, but the 1st to 4th Interested Parties were later registered as owners. Following his complaint, the National Land Commission reviewed the grants under Section 14 of the National Land Commission Act and, by determination dated 8th October 2015, directed revocation of the titles and issuance of a title to the Applicant. The Registrar declined to implement the directive, contending she had a discretion under Section 14(c) of the Land Registration Act and that the Commission had not accorded the Interested Parties a fair hearing. The 1st to 4th Interested Parties, duly served by substituted service, did not appear. The court held that the Commission acts as a tribunal and its Section 14(5) directive is in mandatory terms and binding unless quashed or overturned; the Registrar cannot unilaterally disregard it, as that would usurp the supervisory role of the superior courts and reverse constitutional gains. The court allowed the application and directed that each party bear its own costs.

Key legal issues

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01

Binding nature of the National Land Commission's Section 14 determination on the Chief Land Registrar

Holding

The Commission's determination, made in exercise of its constitutional and statutory mandate as a tribunal, is binding unless quashed or overturned on appeal or review; the Registrar's refusal to implement it is unlawful.

Reasoning

The Commission is a Constitutional Commission established under Article 67(1). Section 14(5) of the National Land Commission Act uses mandatory language ('shall direct the registrar to revoke the title'). The determination had not been quashed or appealed. The Respondent, being neither the ELC nor the High Court nor their superior, cannot arbitrarily choose which determinations to implement without usurping the supervisory jurisdiction of the superior courts.

p. 6
02

Whether the Registrar's discretion under Section 14(c) of the Land Registration Act excuses non-implementation

Holding

No; the discretion cannot be used to disregard a binding determination of the Commission, nor can the Registrar raise the Interested Parties' alleged denial of a fair hearing while failing to challenge the determination.

Reasoning

The Registrar argued she had a discretion under Section 14(c) of the Land Registration Act and that the Commission failed to grant the 1st to 3rd Interested Parties a fair hearing. The court held that any complaint about the Commission's process should have been raised in a challenge to the determination, not by unilaterally sitting on it. The Interested Parties, though duly served by substituted service, never appeared to ventilate how they acquired the land.

p. 7
03

Scope of the National Land Commission's review mandate under Section 14 of the National Land Commission Act

Holding

The suitland, being leased public land originally allocated by the Commissioner of Lands, falls squarely within the Commission's mandate to review grants and dispositions of public land.

Reasoning

The Commission's mandate under Section 14(1) covers all grants or dispositions of public land. The Land Act definition of 'disposition' is wide. The suitland was initially public utility land allocated by way of Letter of Allotment and remains leased public land with the Government as head lessor, so the Commission was empowered to examine the conversion process and the legality of the resulting titles.

p. 6

Legal principles established

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  • Where the National Land Commission finds that a title over public land was acquired unlawfully, its directive under Section 14(5) of the National Land Commission Act that the Registrar revoke the title is mandatory and binding.
  • The Chief Land Registrar has no power to revoke title; power to review grants of public law was conferred on the National Land Commission from 2nd May 2012.
  • A party aggrieved by a National Land Commission determination must challenge it in court; the Registrar cannot passively decline to implement it.

Court orders

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  1. 1.The Notice of Motion dated 11th July 2016 is allowed
  2. 2.Mandamus to compel the Chief Land Registrar to revoke Grant Numbers CR. 55799, CR. 55798, CR. 55781 and CR. 55782 for LR. MN/III/432-435 and expunge them from the Register of Titles and issue a Certificate of Lease/Title to the Applicant
  3. 3.The parcels of land under the said grants to be vested in the Applicant
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 1
  • Law Reform ActSections 8 and 9
  • Constitution of Kenya, 2010Articles 47, 67(1), 67(3), 68(c)(v), 162 and 165
  • National Land Commission ActNo. 5 of 2012, Sections 14(1), 14(3), 14(4), 14(5) and 14(6)
  • Land Registration ActNo. 3 of 2012, Section 14(c)
  • Land ActSection 2 (definition of 'disposition')
  • Registration of Land Act

Cases cited (2)

  • Republic v Land Registrar Mombasa & 2 Others Ex-parte Bhangra Limited
    [2012] eKLR
  • Republic v National Land Commission & Another Ex-parte Muktar Saman Olow
    Misc Application No. 376 of 2014 [2015] eKLR
Jurisdiction invoked
Judicial review jurisdiction under Sections 8 and 9 of the Law Reform Act and Order 53 Rule 1 of the Civil Procedure Rules

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 Chief Land Registrar; Mburu & 3 others (Interested Parties); Chemmuttut (Ex parte) (Judicial Review Application 3 of 2016) [2017] KEELC 1881 (KLR)", Case Analysis (2017). Judicial Review Application - Notice of Motion dated 11th July 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1881/eng@2017-09-19

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