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ELCPartially AllowedELC Pet 8 of 2016· [2019] KEELC 1328 (KLR)

Lawrence Muriithi Mbabu v District Land Registrar, Nyeri & another; John Githui Kinyua (Interested Party) [2019] KEELC 1328 (KLR)

Environment and Land Court
23 October 2019
MOM.C. Oundo
5,029 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan land registrar cannot cancel your title through a Gazette Notice; cancellation without notice or a hearing is unconstitutional and will be reversed by the courts.

What this practically means

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Executive summary

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The Petitioner, registered as proprietor of land parcel No. Nyeri/Ngarengiro/357 on 29th July 1997 upon transfer from the Settlement Fund Trustees, discovered in December 2016 that his title had been cancelled via Gazette Notice No. 8145 of 15th October 2004 and the land subsequently transferred to third parties, including the interested party. He petitioned for declarations that the Gazette Notice and cancellation were a nullity, reinstatement of his registration, and compensation in the alternative. The court framed three issues: whether the Petition disclosed a protectable interest, whether the cancellation contravened Article 47, and whether the Petitioner was entitled to the orders sought. Applying Anarita Karimi Njeru, the court found the violations were pleaded with reasonable precision. The court held that the Petitioner's rights, accrued under the repealed Registration of Titles Act and preserved by Section 107 of the Land Registration Act, 2012, could only be cancelled pursuant to a court order under Sections 60 and 61 of the repealed Act; the Registrar had no power to revoke a title by Gazette Notice. No evidence of fraud in the Petitioner's acquisition was tendered, and as a bona fide purchaser for value his title was indefeasible. The cancellation without notice or hearing violated Articles 47 and 50. Judgment was entered for the Petitioner: the cancellation was declared null and void, the Registrar was ordered to reinstate the Petitioner's registration and publish the orders in the Kenya Gazette within 21 days, with compensation in the alternative and costs to the Petitioner.

Key legal issues

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01

Whether the Registrar had power to cancel the Petitioner's title by Gazette Notice

Holding

The Registrar had no such power. The Petitioner's rights accrued under the repealed Registration of Titles Act, which by Section 107 of the Land Registration Act, 2012 continued to govern them; under Sections 60 and 61 of that Act cancellation required a court order.

Reasoning

The Petitioner's title was acquired in 1997, before the Land Registration Act came into force. Section 107 preserves the law applicable to rights accrued under repealed statutes. Under Sections 60 and 61 of the Registration of Titles Act, the Registrar could only summon the holder for correction and, failing compliance, apply to Court; cancellation could only be pursuant to a court order. The Gazette Notice route was therefore ultra vires.

p. 6
02

Whether the cancellation violated Articles 47 and 50 of the Constitution

Holding

Yes. The Petitioner was given neither notice of the intended cancellation nor an opportunity to be heard, violating fair administrative action and fair hearing rights.

Reasoning

The Petitioner was the registered proprietor since 1997 and held a certificate of title issued by the 1st Respondent himself. Before taking action adverse to his rights, the Respondent was obliged to afford him a hearing. The failure to give notice or a hearing was not disputed by the Respondents, and the action could not stand.

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Whether the Petitioner's title was fraudulently or unlawfully acquired so as to lose Article 40 protection

Holding

No. Neither the Respondents nor the interested party tendered evidence of fraud, and the Petitioner was a bona fide purchaser for value without notice.

Reasoning

Under Section 23(1) of the Registration of Titles Act and Section 26(1) of the Land Registration Act, a registered proprietor's title is indefeasible except on proof of fraud or misrepresentation to which he is party. Fraud must be strictly proved. No evidence of fraud was tendered, and the interested party's assertion that the registration was erroneous and illegal was not substantiated.

p. 5

Legal principles established

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  • A Land Registrar has no power to cancel a title by Gazette Notice; cancellation or correction of a title can only follow a court order under Sections 60 and 61 of the (repealed) Registration of Titles Act.
  • Cancellation of a title without notice or a hearing contravenes Articles 47 and 50 of the Constitution (fair administrative action and fair hearing).
  • Allegations of fraud must be strictly proved; something more than a mere balance of probabilities is required.
  • A finding of unlawful acquisition under Article 40(6) must be through a legally established process, not by whim or revocation by Gazette Notice.

Court orders

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  1. 1.Declaration that the cancellation of the Petitioner's registration as proprietor of title No. Nyeri/Ngarengiro/357 on 14th April 2005 is constitutionally invalid, null and void
  2. 2.Direction to the Registrar of Titles to reverse the entry of 14th April 2005 and reinstate the Petitioner's registration as proprietor forthwith
  3. 3.In the alternative, the Respondents to compensate the Petitioner for loss of his land valued at current market rate
  4. 4.Award of costs of the Petition to the Petitioner
  5. 5.Direction that the Registrar of Titles publish the orders in the Kenya Gazette within 21 days

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 40, 47, 50
  • Land Registration Act, 2012Sections 14, 26(1), 27, 28, 107
  • Registration of Titles Act (repealed), Cap 281Sections 23(1), 60, 61
  • Registered Land Act (repealed)Sections 27, 28
  • Land Control ActSection 8
  • Law of Contract Act

Cases cited (8)

  • Charles Malenya & 22 Others vs Registrar of Titles Nairobi & Another
    [2012] eKLR
  • R vs Devon County Council ex parte P. Baker
    [1995] 1 ALL ER
  • Kuria Greens Ltd vs Registrar of Titles & Another
    [2011] eKLR
  • Anarita Karimi Njeru vs The Republic
    (1979-1980) KLR 1272
  • Charles Karathe Kiarie & 2 Others vs Administrators of Estate of John Wallance Muthare (deceased) & 5 others
    [2013] eKLR
  • R.G Patel vs Lalji Makanji
    1957 E.A 314
  • Isaac Gathungu Wanjohi & Another vs Attorney General & 6 Others
    [2012] eKLR
  • Chemei Investments Limited v The Attorney General & Others
    Nairobi Petition No. 94 of 2005 (Unreported)
Jurisdiction invoked
Articles 22 and 23 of the Constitution (enforcement of Bill of Rights) read with Article 40 (protection of right to property)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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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, "Lawrence Muriithi Mbabu v District Land Registrar, Nyeri & another; John Githui Kinyua (Interested Party) [2019] KEELC 1328 (KLR)", Case Analysis (2019). ELC Pet 8 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1328/eng@2019-10-23

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