Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedE.L.C. Miscellaneous Civil Application No. 261 of 2016· [2018] KEELC 1489 (KLR)

Bamburi Cement Ltd v Chief Registrar & another (Environment and Land Miscellaneous Application 261 of 2016) [2018] KEELC 1489 (KLR)

Environment and Land Court
5 October 2018
KBK. BOR
1,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ordered the removal of government caveats on Bamburi Cement's land, ruling a Cabinet decision cannot override registered titles.

What this practically means

#

Executive summary

#
Bamburi Cement Limited, registered owner since 1969 of some two dozen parcels along L.R. No. 18696, sought judicial review orders of mandamus and prohibition against the Chief Land Registrar, who had entered caveats on the titles on 10/8/2010 following a ministerial memo of 27/7/2010 and a Cabinet decision of 29/6/2010 restricting titles over allegedly irregularly acquired road reserves. The Applicant contended the caveats contravened Article 40 of the Constitution and were unjustified under Sections 65(f) and (i) of the repealed Registration of Titles Act and Section 72 of the Land Registration Act, noting that Kenya National Highways Authority had confirmed in 2014 that the parcels did not encroach on the Mombasa Road reserve. The Respondents opposed, arguing the substantive motion was filed outside the 21-day period set by Order 53 Rule 2, that the Registrar acted in good faith in the public interest, and that there had been delayed service on the Attorney General. The court accepted that time for filing judicial review applications cannot be extended, but declined to dismiss on that technicality, invoking the overriding objective. On the merits, it held that a caution confers no ownership rights, that a Cabinet meeting could not make the Article 40(6) finding of unlawful acquisition, and that the Government should have challenged the titles through due process. The court found the application merited, granted prayers 1 and 2, and awarded the Applicant the costs of the suit.

Key legal issues

#
01

Whether the motion filed outside 21 days of leave must fail

Holding

The court acknowledged the 21-day rule but declined to dismiss, electing to determine the merits in line with the overriding objective.

Reasoning

The court accepted that the time for filing judicial review applications cannot be extended, but held that dismissing the suit on a technicality would not resolve the underlying dispute; the Applicant could simply seek leave afresh, wasting judicial resources. The overriding objective favouring just, expeditious, proportionate and affordable resolution justified a determination on the merits.

p. 2
02

Legality of the caveats registered pursuant to a Cabinet decision

Holding

The caveats lacked legal justification; a Cabinet meeting could not make the Article 40(6) finding of unlawful acquisition, and the Registrar should not maintain caveats on that basis.

Reasoning

The caveats purported to rest on a Cabinet decision of 29/6/2010 concerning irregularly acquired road reserves. The court held that a caution confers no ownership rights, that the protection of Article 40 applies except where property is found unlawfully acquired, and doubted that a Cabinet meeting could make such a finding; only the court or a process under the National Land Commission Act could do so.

p. 3

Legal principles established

#
  • The time for filing judicial review applications cannot be extended.
  • A caution does not confer ownership rights over land.
  • If the Government believes land belongs to it, it must challenge the title and follow due process rather than lodge caveats.

Court orders

#
  1. 1.Mandamus compelling the Chief Land Registrar to remove the caveats entered on 10/8/2010 against the Applicant's suit parcels (prayers 1 and 2 granted)
  2. 2.Prohibition restraining the Chief Land Registrar from making further prejudicial entries or dealings against the parcels
  3. 3.Costs of the suit awarded to the Applicant

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 53 Rules 2
  • Law Reform Act (Cap 26)Sections 8 and 9
  • Registration of Titles Act (Cap 281) (repealed)Sections 62, 64, 65(1)(f) and (i)
  • Land Registration ActSections 71, 72
  • Constitution of KenyaArticles 40, 40(6)
  • National Land Commission Act

Cases cited (1)

  • Republic v. Kahindi Nyafula & 3 Others, Ex parte Kilifi South East Farmers Cooperatives Society
    [2014] eKLR
Jurisdiction invoked
Order 53 of the Civil Procedure Rules, 2010 and Sections 8 and 9 of the Law Reform Act (Cap 26)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Bamburi Cement Ltd v Chief Registrar & another (Environment and Land Miscellaneous Application 261 of 2016) [2018] KEELC 1489 (KLR)", Case Analysis (2018). E.L.C. Miscellaneous Civil Application No. 261 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1489/eng@2018-10-05

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