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ELCPartially AllowedELC Judicial Review No. 19 of 2018 (Formerly Machakos Judicial Review ELC No. 137 of 2011)· [2018] KEELC 1498 (KLR)

Republic v Commissioner of Lands & another Ex-Parte Joel Tegeret [2018] KEELC 1498 (KLR)

Environment and Land Court
1 October 2018
COChristine Ochieng
1,764 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

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Land officers in Kenya cannot revoke your title through a gazette notice without first giving you a hearing — only a court can cancel a title.

What this practically means

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Executive summary

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The ex-parte applicant, Joel Tegeret, moved the Environment and Land Court at Kajiado by Notice of Motion dated 9th June 2011 seeking certiorari to quash Gazette Notice No. 15581 of 26th November 2010 by which the District Lands Registrar, Kajiado revoked his title to Ngong/Ngong Block 2/583, together with mandamus and prohibition. He asserted he was the registered proprietor under a 99-year Certificate of Lease issued by Olkejuado County Council on 28th April 2005, that he had paid rent and rates, and that the revocation was effected without notice or hearing, contrary to sections 27 and 28 of the repealed Registered Land Act, the rules of natural justice and his constitutional property and fair-hearing rights. He contended that only a court could order revocation of title. The respondents, though served, neither entered appearance nor filed a response, so the applicant's averments went uncontroverted. Relying on Municipal Council of Mombasa v Republic & Umoja Consultants Ltd on the parameters of judicial review, and Livingstone Kunini Ntutu v Minister for Lands, the court held that revocation of a title without a hearing breached natural justice and the right not to be condemned unheard. On 1st October 2018 the court allowed the motion in part: certiorari quashed the gazette notice; mandamus issued compelling the Registrar to publish a fresh notice revoking Gazette Notice No. 15581; the prohibition prayer was not granted; and costs were awarded to the applicant.

Key legal issues

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01

Whether certiorari should issue to quash the Gazette Notice revoking the applicant's title

Holding

Certiorari issued because the title was revoked without according the applicant a hearing, contrary to the rules of natural justice and his constitutional right not to be condemned unheard; the averments stood uncontroverted as the Respondents filed no response.

Reasoning

The applicant was the registered proprietor, holding a Certificate of Lease issued on 28th April 2005 under the repealed Registered Land Act. Sections 142(c), 143(1) and 154(1) of that Act, as well as the Land Act, prescribe the procedure for cancelling or revoking a title: it is the court that is mandated to order revocation and the affected party must be heard. The gazette notice gave no indication that the applicant was accorded a hearing. With no response filed, the averments remained uncontroverted, so certiorari issued.

p. 3
02

Whether mandamus should issue to compel the Registrar to issue a fresh gazette notice revoking Gazette Notice No. 15581

Holding

Mandamus issued compelling the District Land Registrar, Kajiado to publish a fresh gazette notice revoking Gazette Notice No. 15581 of 26th November 2010 with regard to the suit land.

Reasoning

Having quashed the original gazette notice for want of a hearing, the court granted the consequential prayer compelling the Registrar to publish a fresh notice formally revoking Gazette Notice No. 15581 with regard to the suit land, as sought in the Notice of Motion.

p. 3

Legal principles established

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  • A Certificate of Title is prima facie evidence of ownership of land and can only be challenged if issued through fraud or misrepresentation
  • It is the court, not the Land Registrar, that is legally mandated to order cancellation or revocation of a title, and the affected party must be heard first
  • Judicial review concerns the decision-making process, not the merits of the decision itself

Court orders

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  1. 1.An order of certiorari quashing the decision of the District Lands Registrar, Kajiado contained in Kenya Gazette No. 15581 of 26th November 2010 revoking the Applicant's title to Ngong/Ngong Block 2/583
  2. 2.An order of mandamus compelling the District Land Registrar, Kajiado to issue a fresh Gazette Notice revoking Gazette Notice No. 15581 of 26th November 2010 with regard to Ngong/Ngong Block 2/583
  3. 3.Costs of the application awarded to the applicant

Authorities

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Legislation

  • Law Reform ActSections 8 and 9
  • Civil Procedure RulesOrder 53
  • Constitution of KenyaArticles 40, 47, 48 and 50
  • Registered Land Act (repealed)Sections 27, 28, 142(c), 143(1), 154(1)
  • Land Act

Cases cited (2)

  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Livingstone Kunini Ntutu Vs Minister for Lands & 4 others
    (2014) eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap 26), Order 53 of the Civil Procedure Rules and Articles 40, 47, 48 and 50 of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Republic v Commissioner of Lands & another Ex-Parte Joel Tegeret [2018] KEELC 1498 (KLR)", Case Analysis (2018). ELC Judicial Review No. 19 of 2018 (Formerly Machakos Judicial Review ELC No. 137 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1498/eng@2018-10-01

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