Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedJudicial Review (Notice of Motion dated 17th May, 2012)· [2017] KEELC 3365 (KLR)

John Waboi Mwangi & 16 others v Chief Land Registrar & 6 others [2017] KEELC 3365 (KLR)

High Court of Kenya
24 March 2017
1,848 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Land Registrar cannot revoke your land title by Gazette Notice — only a Kenyan court can cancel a registered title.

What this practically means

#

Executive summary

#
This is a first-instance judicial review decision of the High Court at Machakos (Oscar A. Angote, J) delivered on 24th March 2017. The Ex-parte Applicants, registered proprietors of thirteen parcels of land within Machakos Municipality, sought certiorari to quash a Notice of Revocation of their Title Deeds published in Gazette Notice No. 15573 dated 26th November 2010, together with prohibition against implementation of the Gazette Notice. They contended that the Land Registrar had no power under the then Registered Land Act to revoke titles, and that the revocation was unprocedural, ultra vires and done without a hearing. The 3rd Interested Party (the anti-corruption body) opposed, showing that it had already filed nineteen suits (Machakos HCCC Nos. 14-32 of 2008) seeking cancellation of the same titles over land allegedly reserved for the Prisons department and Administration Police, and urged public interest, relying on Cinnamond vs. British Airports Authority. The court found it undisputed that the Applicants were never invited to make representations before revocation, and that no provision of law authorised the District Land Registrar to revoke a Certificate of Lease. Holding that only a court may cancel titles issued under the Registered Land Act (repealed), the court found the revocation breached Articles 40 and 47(1) of the Constitution and that public interest cannot validate an ultra vires act. The Notice of Motion was allowed: certiorari issued quashing the Notice of Revocation, with each party bearing its own costs; the prohibition orders sought were not granted in the final disposition.

Key legal issues

#
01

Power of the Land Registrar to revoke titles

Holding

The District Land Registrar had no power to revoke the Applicants' titles by Gazette Notice; only a court may cancel titles issued under the Registered Land Act.

Reasoning

The Respondents and Interested Parties could not point to any provision of law permitting the Registrar to revoke a Certificate of Lease, let alone before inviting the registered owner to make representations. Since the power did not exist, the revocation was ultra vires the Constitution and the Registered Land Act Cap 300, and the Notice of Revocation is liable to be quashed by certiorari.

p. 5
02

Natural justice and constitutional rights to property and fair administrative action

Holding

Revoking the titles without giving the Applicants an opportunity to be heard breached natural justice, Article 40 and Article 47(1) of the Constitution.

Reasoning

It was not disputed that the Applicants were never called upon to explain how they obtained their Certificates of Lease before revocation. Following Livingstone Kunini Ntutu vs. Minister for Lands & 4 others, such revocation constitutes arbitrary deprivation of property under Article 40 and a breach of Article 47(1). The public interest argument fails because a person acting without power cannot claim to act in the public interest.

p. 5
03

Pending anti-corruption suits and the proper forum

Holding

Since the 3rd Interested Party had already filed nineteen suits challenging the validity of the titles, the legality of the titles should be determined on evidence in those suits, not by administrative revocation.

Reasoning

The Kenya Anti-Corruption Commission had instituted Machakos HCCC Nos. 14-32 of 2008 seeking cancellation of the Applicants' titles, alleging fraudulent and illegal alienation of prison and Administration Police land. Those suits were pending. The court noted that evidence should have been called in those suits to determine the legality of the titles, underscoring that the judicial process, not administrative fiat, is the lawful avenue.

p. 5
04

Public interest versus legality

Holding

Although the revocation was framed as serving public interest in the prison land, the pursuit of public interest must be lawful; an officer acting without power cannot claim public interest.

Reasoning

The court accepted that the issue may be classified as one of public interest, given that the suit properties were allegedly reserved for the Machakos Prison under Gazette Notice No. 397 of 1928 and the prison as a corrective facility. However, because the District Land Registrar was not clothed with the power and mandate to revoke the titles, the public interest claim could not validate the ultra vires action.

p. 5

Legal principles established

#
  • Only the court has the mandate to cancel a title document issued under the Registered Land Act (repealed); a Land Registrar cannot revoke titles by Gazette Notice.
  • A revocation of title without authority is a breach of Articles 40 and 47(1) of the Constitution as an arbitrary deprivation of property.
  • Public interest must be pursued within the confines of the law.

Court orders

#
  1. 1.An order of certiorari calling into the court the Notice of Revocation of Title Deeds for Machakos Municipality Block 1/611, 635, 639, 644, 646, 648, 654, 664, 666, 668, 712, 717 and 609 for purposes of being quashed and/or declared null and void for being ultra vires the Constitution of Kenya and the Registered Land Act Cap 300
  2. 2.Each party to bear his/its own costs

Authorities

#

Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 40(6)
  • Constitution of KenyaArticle 47(1)
  • Registered Land Act (Cap 300) (repealed)
  • Government Lands Act
  • Trust Land Act
  • Civil Procedure RulesOrder 53

Cases cited (2)

  • Cinnamond vs. British Airports Authority
    (1980) 1 WLR 582
  • Livingstone Kunini Ntutu vs. Minister for Lands & 4 others
    (2014) eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Waboi Mwangi & 16 others v Chief Land Registrar & 6 others [2017] KEELC 3365 (KLR)", Case Analysis (2017). Judicial Review (Notice of Motion dated 17th May, 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3365/eng@2017-03-24

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