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ELCDismissedJudicial Review Application (Notice of Motion dated 23rd September, 2016)· [2018] KEELC 4713 (KLR)

Bernard Nguyo & 2 others v Chief Land Registrar & 7 others [2018] KEELC 4713 (KLR)

High Court of Kenya
26 January 2018
OAO.A. ANGOTE
1,205 words in judgment
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The bottom line

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Kenya's High Court ruled that land ownership disputes belong in a civil suit, not judicial review, dismissing the church's bid to cancel a rival's title.

What this practically means

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Executive summary

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The Ex-parte Applicants, officials of the African Inland Church, Machakos Area, sought judicial review orders of mandamus and prohibition compelling the Respondents to revoke the title to Mwala/Mathunthini/570, registered on 24th June 2016 in the name of African Inland Church Mathunthini Local Church Council, and to issue a fresh title to Africa Inland Church Kenya Trustees Registered. The Applicants argued that under the 2008 Constitution of the African Inland Church, only the Board of Trustees may hold church property, and that the Respondents acted illegally, unfairly, irrationally and in breach of natural justice. The Interested Parties, officials of the Local Church Council, countered that they were duly elected, that the 1981 Constitution mandated the local church to manage its assets, and that a judicial review court could not receive the evidence needed to cancel a title. Relying on Commissioner of Lands vs Kunsite Hotel Limited, the court held that judicial review addresses the decision-making process rather than private rights or the merits. The court found the Applicants were in effect asking it to decide ownership of the land and the validity of competing church constitutions, matters requiring evidence unsuitable for judicial review. It found no unfair hearing since the land was never registered in the Applicants' favour, the official search showing it belonged to Masaku County Council. The Notice of Motion was dismissed with costs.

Key legal issues

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01

Scope of judicial review relief in disputes over title registration

Holding

The Motion is bad in law and incompetent; the court cannot adjudicate ownership and constitutional validity of the church in judicial review proceedings

Reasoning

The court relied on the principle in Commissioner of Lands vs Kunsite Hotel Limited that judicial review concerns the decision-making process, not private rights. Determining who should own the suit land and which church Constitution is valid would require receiving evidence and evaluating documents, which a judicial review court is ill-equipped to do. The proper remedy is a civil suit to prove fraud or mistake.

p. 3
02

Whether the Applicants were denied a fair hearing

Holding

The natural justice argument fails because the land was never registered in favour of the Applicants

Reasoning

The court found that the official search showed the land belongs to Masaku County Council, which only reserved it for the Mathunthini African Inland Church. Since the Applicants were never the registered owners, the claim that they were denied a fair hearing in the registration process did not arise.

p. 3

Legal principles established

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  • Judicial review is concerned with the decision-making process, not private rights or the merits of the decision
  • Issues requiring the determination of contested title and validity of competing constitutions cannot be resolved in judicial review; a civil suit is the proper forum

Court orders

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  1. 1.The Notice of Motion dated 23rd September, 2016 is dismissed with costs

Authorities

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Cases cited (1)

  • Commissioner of Lands vs. Kunsite Hotel Limited
Jurisdiction invoked
Judicial review jurisdiction of the High Court (order of mandamus and prohibition sought against the Land Registrar)

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, "Bernard Nguyo & 2 others v Chief Land Registrar & 7 others [2018] KEELC 4713 (KLR)", Case Analysis (2018). Judicial Review Application (Notice of Motion dated 23rd September, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4713/eng@2018-01-26

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