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ELCDismissedNot stated in the judgment (exparte applicant's notice of motion dated 31st May, 2017)· [2018] KEELC 159 (KLR)

Maureen Ndunge Musomi v Chief Lands Registrar & 2 others; Ann Wayua Comet (Interested Party) [2018] KEELC 159 (KLR)

High Court of Kenya (Judicial Review)
22 November 2018
2,083 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's High Court confirmed you cannot fight a land ownership dispute through judicial review, and missed deadlines will kill your case outright.

What this practically means

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Executive summary

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This ruling determined the Interested Party's notice of preliminary objection dated 14th December, 2017 against a judicial review notice of motion dated 31st May, 2017, in which the Ex-parte Applicant sought certiorari, prohibition and mandamus to quash a decision of the Chief Land Registrar Nairobi and Land Registrar Makueni revoking her title to parcel Makueni/Mbau/57 and registering the Interested Party as owner. The Interested Party argued, citing Sanghani Investment Ltd and Republic v Registrar of Titles ex-parte Kenya Shell Ltd, that the real dispute was ownership of land, which cannot be resolved in judicial review without viva voce evidence, and further that the application for certiorari was filed outside the six-month period prescribed by Order 53 Rule 2 of the Civil Procedure Rules and section 9(3) of the Law Reform Act, citing Republic v County Council of Kwale ex-parte Kindo. The Respondents supported the objection, citing section 61 of the Land Registration Act, 2012 on transmission upon death and pointing to the registration by way of transmission following a confirmed grant. Mbogo J agreed that ownership cannot be determined in judicial review, noting the Applicant had not raised any complaint of unfairness, illegality or irrationality in the decision-making process. The court further found the application was filed nearly a year after the impugned decision, well beyond the six-month window. Upholding the preliminary objection, the court dismissed the Ex-parte Applicant's application with costs to the Interested Party and the Respondents, on 22nd November, 2018 at Makueni.

Key legal issues

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01

Whether ownership of land can be litigated in judicial review proceedings

Holding

No - ownership disputes require viva voce evidence and cannot be resolved in judicial review, which is only concerned with the decision-making process

Reasoning

The court noted that judicial review assesses the manner in which a decision is made to ensure public powers are exercised lawfully, fairly and rationally. The Ex-parte Applicant did not complain of being unheard or of irrationality; her real grievance was ownership of Makueni/Mbau/57. That issue requires oral evidence and cross-examination and belongs in a civil suit, following Sanghani Investment Ltd and Republic v Registrar of Titles ex-parte Kenya Shell Ltd.

p. 3
02

Whether the application for certiorari was filed within the statutory limitation period

Holding

No - the decision impugned was made on 9th May, 2016 yet the application was dated 31st May, 2017, beyond the six-month period prescribed by Order 53 Rule 2 and section 9(3) of the Law Reform Act

Reasoning

Order 53 Rule 2 of the Civil Procedure Rules and section 9(3) of the Law Reform Act bar the grant of leave for certiorari unless the application is made not later than six months after the impugned proceeding. Relying on Republic v County Council of Kwale Ex-parte Kindo, the court found the provision mandatory and held that the application filed nearly a year after the decision was out of time and incompetent.

p. 3
03

Whether the application discloses a cause of action against the Respondents and the Interested Party

Holding

The preliminary objection on this ground was supported by the court's findings; the registration was effected by transmission pursuant to a confirmed grant under section 61 of the Land Registration Act, 2012

Reasoning

The Respondents' counsel cited section 61 of the Land Registration Act, 2012 governing transmission upon death of a sole proprietor, and pointed to the annextures showing registration by way of transmission following a confirmation of grant issued to the Interested Party and Jane Mbithe Comet. Together with the limitation and ownership findings, the court upheld the objection and dismissed the application.

p. 3

Legal principles established

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  • The question of ownership of land cannot be determined in judicial review proceedings as it requires viva voce evidence
  • An application for leave to apply for certiorari must be made not later than six months after the date of the impugned decision, and applications filed outside that window are incompetent

Court orders

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  1. 1.The notice of preliminary objection dated 14th December, 2017 is upheld
  2. 2.The Ex-parte Application dated 31st May, 2017 is dismissed with costs to the Interested Party and the Respondents

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 53 Rules 2 and 3
  • Law Reform Act (Cap 26)Sections 8 and 9(3)
  • Land Registration Act, 2012Section 61

Cases cited (3)

  • Sanghani Investment Ltd V Office in Charge of Nairobi Remand and Allocation Prison
    [2007] EA 354
  • Republic Vs Registrar of Titles & Ex-parte Kenya Shell Limited
    [2003] eKLR
  • Republic V County Council of Kwale & Another Exparte Kindo & 57 others
    [1995] 1 KLR (E&L)
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules, 2010

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, "Maureen Ndunge Musomi v Chief Lands Registrar & 2 others; Ann Wayua Comet (Interested Party) [2018] KEELC 159 (KLR)", Case Analysis (2018). Not stated in the judgment (exparte applicant's notice of motion dated 31st May, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/159/eng@2018-11-02

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