Elijah Githinji Charara v County Land Registrar Laikipia & 2 others [2018] KEELC 3054 (KLR)
The bottom line
#A Kenyan court confirmed that a land registrar cannot cancel your title deed by Gazette Notice without first giving you notice and a hearing.
What this practically means
#Executive summary
#Key legal issues
#Fair administrative action under Article 47
The Registrar's cancellation of the Petitioner's title without notice or hearing violated Article 47(1) and (2).
The Petitioner's rights were adversely affected by the cancellation, so the Registrar was obliged to give him an opportunity to be heard and written reasons. No response was filed by the Respondents disputing that no notice or hearing was given. The cancellation therefore could not stand as it denied the Petitioner a fair chance to defend his title.
Statutory power to cancel a title under the Registration of Titles Act
The Registrar had no statutory power to cancel the entries; under Sections 60 and 61 of the Registration of Titles Act (repealed) cancellation requires a court order.
Section 60 required the Registrar to summon the title holder or apply to court; Section 61 permits cancellation only pursuant to a court order. Section 107 of the Land Registration Act, 2012 preserves the repealed law for rights acquired before commencement, so the Registrar acted without power in cancelling the entries by Gazette Notice.
Protection of bonafide purchaser under Article 40 and the Torrens system
The Petitioner, a bonafide purchaser for value without notice of fraud, holds an indefeasible title protected by Article 40; no evidence of fraud was tendered against him.
Section 23(1) of the Registration of Titles Act and Section 26(1) of the Land Registration Act render a certificate of title conclusive or prima facie evidence of absolute ownership, challengeable only on fraud or misrepresentation to which the proprietor is party, or illegal or unprocedural acquisition. Rectification under Section 80 requires proved fraud or mistake. The Respondents tendered no evidence of fraud or of the Petitioner's knowledge of any fraud, and his assertion of bona fide purchase was uncontroverted.
Fair hearing under Article 50(1)
The Registrar failed to afford the Petitioner a fair hearing as required by Article 50(1).
The Petitioner ought to have been called upon to explain how he acquired the suit land, particularly since the 1st Respondent had himself issued the Certificate of Title. The failure to follow due process in reaching a decision with far-reaching ramifications breached Article 50(1).
Legal principles established
#- A Registrar has no power to cancel a title by Gazette Notice without due process; cancellation or rectification requires a court order or proof of fraud.
- Even where property is unlawfully acquired, a finding of unlawful acquisition under Article 40(6) must follow a legally established process, not revocation by Gazette Notice.
- A registered proprietor's title is indefeasible unless fraud or misrepresentation to which the proprietor is a party is proved.
Court orders
#- 1.Declaration that the cancellation of the Petitioner's registration as proprietor of title No. Laikipia/Kinamba/Mwenje Block 1/1311 on 29th October 2013 is constitutionally invalid, null and void
- 2.The Registrar of Titles directed to reverse the entry effected on 29th October 2013 cancelling entries number 2, 3, 4, 5 and 6 on the register and to reinstate the Petitioner's registration as proprietor forthwith
- 3.Petitioner awarded costs of the Petition
- 4.Registrar of Titles directed to publish the orders in the Kenya Gazette within 21 days
- Jurisdiction invoked
- Articles 19, 22, 23, 40, 47, 50 and 64 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elijah Githinji Charara v County Land Registrar Laikipia & 2 others [2018] KEELC 3054 (KLR)", Case Analysis (2018). ELC Petition No 518 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3054/eng@2018-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.