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ELCPartially AllowedELC Judicial Review No. 20 of 2018 (Formerly Machakos Judicial Review ELC No. 132 of 2011)· [2018] KEELC 1525 (KLR)

Republic v Commissioner of Lands & another Ex – Parte George Kimani Njuki [2018] KEELC 1525 (KLR)

Environment and Land Court of Kenya
1 October 2018
1,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's lands registry cannot revoke your land title by simply publishing a gazette notice — only a court can, after hearing you first.

What this practically means

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Executive summary

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The ex-parte applicant, George Kimani Njuki, moved the Environment and Land Court at Kajiado by Notice of Motion dated 3rd June 2011 seeking certiorari, mandamus and prohibition against the District Lands Registrar, Kajiado's revocation of his title to Ngong/Ngong Block 2/582 through Gazette Notice No. 15581 of 26th November 2010. He purchased the land for Kshs. 500,000 from Winifred Wambui Muya and obtained a Certificate of Lease on 27th September 2007. He argued the revocation breached his constitutional right to property, sections 27 and 28 of the Registered Land Act, and the rules of natural justice, since he was never heard. The Respondents, though served, neither entered appearance nor filed a response, leaving the applicant's averments uncontroverted. The court, per Christine Ochieng J, applied the Municipal Council of Mombasa principle that judicial review examines the decision-making process rather than the merits, and the Livingstone Kunini Ntutu decision on unlawful title revocation. It held that only a court is legally mandated to order cancellation or revocation of a title after the affected party is heard, and that a Certificate of Title is prima facie evidence of ownership challengeable only through fraud or misrepresentation. Finding the revocation procedurally improper, the court allowed the application in part, issuing certiorari to quash the gazette notice and mandamus compelling the Registrar to issue a fresh gazette notice, with costs to the applicant; the prayed order of prohibition was not among the final orders.

Key legal issues

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01

Whether the revocation of the applicant's title without a hearing was lawful

Holding

The revocation was unlawful as the applicant was not accorded a fair hearing; only a court can order revocation of a title and the affected party must first be heard

Reasoning

The court held that the repealed Registered Land Act (sections 142(c), 143(1), 154(1)) and the Land Act prescribe the procedure for cancellation or revocation of a certificate of lease, mandating that only a court may order revocation and that the affected party must first be notified and heard. The Respondents filed no response, so the applicant's averments remained uncontroverted, and the gazette notice gave no indication that a hearing was accorded.

p. 3
02

The proper parameters of judicial review

Holding

Judicial review concerns the decision-making process, not the merits of the decision

Reasoning

Following the Court of Appeal's decision in Municipal Council of Mombasa vs Republic & Umoja Consultants Ltd, the court framed its inquiry around jurisdiction, hearing and relevant/irrelevant considerations, rather than sitting as a court of appeal over the decision maker's merits. The focus was on whether the process accorded with the law and fairness, not whether the revocation was substantively justified.

p. 2

Legal principles established

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  • A Certificate of Title is prima facie evidence of ownership and can only be challenged if issued through fraud or misrepresentation
  • Only a court may order cancellation or revocation of a certificate of lease, and the affected party must first be heard

Court orders

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  1. 1.An order of Certiorari quashing the decision of the District Lands Registrar, Kajiado, contained in the Kenya Gazette No. 15581 of 26th November, 2010 revoking the Applicant's title to Ngong/Ngong Block 2/582
  2. 2.An order of mandamus compelling the District Lands Registrar, Kajiado to issue a fresh Gazette Notice revoking Gazette Notice No. 15581 of 26th November, 2010 with regard to Ngong/Ngong Block 2/582
  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 (Cap 300, repealed)Sections 27, 28, 142(c), 143(1), 154(1)
  • Land ActNot specified

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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Cite this brief

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Cite this brief

Caselaw, "Republic v Commissioner of Lands & another Ex – Parte George Kimani Njuki [2018] KEELC 1525 (KLR)", Case Analysis (2018). ELC Judicial Review No. 20 of 2018 (Formerly Machakos Judicial Review ELC No. 132 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1525/eng@2018-10-01

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