Maureen Ndunge Musomi v Chief Lands Registrar & 2 others; Ann Wayua Comet (Interested Party) [2018] KEELC 159 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether ownership of land can be litigated in judicial review proceedings
No - ownership disputes require viva voce evidence and cannot be resolved in judicial review, which is only concerned with the decision-making process
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.
Whether the application for certiorari was filed within the statutory limitation period
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
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.
Whether the application discloses a cause of action against the Respondents and the Interested Party
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
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.
Legal principles established
#- 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
#- 1.The notice of preliminary objection dated 14th December, 2017 is upheld
- 2.The Ex-parte Application dated 31st May, 2017 is dismissed with costs to the Interested Party and the Respondents
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.