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ELCPartially AllowedPetition dated 30th October, 2015· [2018] KEELC 2308 (KLR)

George Kimani Kangethe v Land Registrar Kajiado & another [2018] KEELC 2308 (KLR)

Environment and Land Court
19 July 2018
COCHRISTINE OCHIENG
4,056 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan land registrar cannot cancel your title by gazette notice without first notifying you and giving you a hearing — that's unconstitutional.

What this practically means

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Executive summary

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The Petitioner, George Kangethe, sought declarations that his Certificate of Lease over NGONG TOWNSHIP BLOCK 2/644 was conclusive evidence of ownership, quashing of a gazette notice dated 26th November 2010 revoking his title, orders of prohibition and mandamus, damages and costs. He averred that he purchased the plot in 2007, conducted an official search, paid stamp duty and was issued a certificate of lease on 13th November 2007, and only discovered the revocation in September 2015 through a neighbour, without ever being notified or heard. The 1st Respondent opposed, contending the suit property was public land reserved for a community centre, that the Petitioner could not rely on constitutional protection over a tainted title under Article 40(6), that ownership disputes require a civil suit with viva voce evidence, and that the special damages claim was unproven. The court framed three issues: whether the revocation breached Articles 40 and 47; whether the Petitioner's right to own property was violated; and whether he was entitled to the reliefs sought. The court held that the District Land Registrar's revocation of the title by gazette notice without notifying the Petitioner or giving him a hearing breached Article 47 and was procedurally improper, and quashed Gazette Notice Vol. CX II – No 124 dated 26th November 2010 – No. 15581. However, the court declined to determine the validity of the Petitioner's title or award damages, holding these require viva voce evidence, and directed the Petitioner to institute a civil suit. The petition was allowed in those terms.

Key legal issues

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01

Whether revocation of the Petitioner's title by gazette notice without notice or hearing breached Article 47

Holding

Yes - the revocation was procedurally unfair and unconstitutional; the gazette notice was quashed

Reasoning

The District Land Registrar, Kajiado gazetted the Petitioner's Certificate of Lease for revocation without notifying him or granting him an opportunity to be heard. The Respondents adduced no evidence that the Petitioner was notified prior to the gazettement. Applying Article 47 and Section 4(3) of the Fair Administrative Act, an administrator must give prior and adequate notice, an opportunity to be heard, and written reasons where administrative action adversely affects rights. The failure to do so rendered the decision procedurally improper and a violation of Articles 40 and 47.

p. 4
02

Whether the Petitioner's title is valid and whether he is entitled to damages

Holding

Not determined - the Petitioner was directed to file a civil suit

Reasoning

The 1st Respondent contended that the title was unlawfully acquired over land reserved for public utility, and that ownership and damages require examination of witnesses and documents. The court agreed that a determination on the validity of the title and quantum of damages requires viva voce evidence which cannot be made on affidavit material in the petition. The Petitioner was therefore directed to institute a civil suit to prove validity of title and damages.

p. 5

Legal principles established

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  • A registered owner's title cannot be revoked by gazette notice without prior notice and an opportunity to be heard; such revocation breaches Articles 40 and 47 of the Constitution and is tainted with procedural impropriety

Court orders

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  1. 1.Petition dated 30th October, 2015 allowed in part
  2. 2.Gazette Notice Vol. CX II – No 124 dated 26th November, 2010 – No. 15581 cancelling the Petitioner's Certificate of Title quashed
  3. 3.Petitioner directed to institute a civil case to present evidence on validity of his title and damages
Jurisdiction invoked
Article 40 and Article 47 of the Constitution of Kenya, 2010 (petition for violation of fundamental rights); judicial review orders of certiorari, prohibition and mandamus

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, "George Kimani Kangethe v Land Registrar Kajiado & another [2018] KEELC 2308 (KLR)", Case Analysis (2018). Petition dated 30th October, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2308/eng@2018-07-19

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