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ELCAllowedJudicial Review Application (Notice of Motion dated 13th February, 2018)· [2019] KEELC 1668 (KLR)

Daniel Piranto Ole Nchani v Deputy County Commissioner Kajiado & 3 others Ex parte Daniel Piranto Ole Nchani [2019] KEELC 1668 (KLR)

Environment and Land Court
16 September 2019
COChristine Ochieng
2,677 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land registrar cannot restrict your land title without first notifying and hearing you — doing so violates your constitutional right to fair administrative action.

What this practically means

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Executive summary

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The ex parte Applicant, the registered proprietor of LR KAJIADO/DALALEKUTUK/3700 since November 2010, moved the Court by Notice of Motion dated 13th February 2018 seeking certiorari to quash a letter dated 21st June 2017 from the Deputy County Commissioner and the resulting restriction registered against his title, and mandamus compelling its removal under sections 78(1) and (2) of the Land Registration Act. The restriction was entered at the instance of the 2nd Respondent following a complaint she lodged, to bar dealings pending resolution of the dispute. The 1st, 3rd and 4th Respondents opposed, contending the restriction was justified under section 76 of the Land Registration Act to prevent fraudulent or improper dealings; the 2nd Respondent did not respond despite service. The Court framed two issues: entitlement to the orders sought and costs. Relying on sections 76, 77 and 78 of the Land Registration Act, Article 47 of the Constitution, section 4 of the Fair Administrative Action Act, and the Municipal Council of Mombasa and Ntutu authorities, the Court held that the Registrar failed to notify or hear the proprietor before registering the restriction and did not lift it on request, breaching natural justice and procedural fairness and amounting to procedural impropriety. The restriction could not subsist indefinitely without a stated reason. The Court allowed the motion, quashed the letter and restriction, ordered the Land Registrar Kajiado to lift the restriction, and awarded costs to the Applicant, borne equally by the 1st and 2nd Respondents.

Key legal issues

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01

Whether the registration of the restriction without notice or hearing to the registered proprietor was lawful

Holding

The registration of the restriction without hearing the applicant violated natural justice, Article 47 of the Constitution and section 4 of the Fair Administrative Action Act, amounting to procedural impropriety

Reasoning

The Land Registrar did not indicate he informed the applicant before entering the restriction, and the Deputy County Commissioner's letter directing the restriction was not copied to the applicant. Administrative action affecting a person requires expeditious, lawful, reasonable and procedurally fair treatment with reasons. Failing to accord a hearing and failing to lift the restriction on request breached natural justice and the right not to be condemned unheard.

p. 3
02

Whether the restriction should subsist pending resolution of the dispute reported by the 2nd Respondent

Holding

No; the restriction could not subsist indefinitely and no reason was shown for its retention

Reasoning

The 1st Respondent's letter referred only to a complaint by Esther I. Nchani without explaining the dispute. The Registrar's position that the restriction should subsist until the dispute was determined was held illogical since no evidence of the dispute was presented. Restrictions under the Land Registration Act endure for a period or event and cannot persist indefinitely without justification.

p. 3

Legal principles established

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  • A proprietor affected by a restriction must be notified and heard before a restriction is registered over his land; failure to do so is a breach of natural justice and Article 47
  • A restriction can only subsist over a period of time and not indefinitely
  • It is the Land Registrar who is legally mandated to enter a restriction over any land after notifying the proprietor

Court orders

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  1. 1.An order of Certiorari be and is hereby issued to quash the 1st Respondent Circular and/or letter dated the 21st June, 2017 and the Restriction registered on 21st June, 2017
  2. 2.An order of Mandamus be and is hereby issued compelling the 3rd Respondent the Land Registrar Kajiado, to remove and/or lift the Restriction pursuant to the provision of Section 78 (1) & (2) of the Land Registration Act 2012 to all that parcel of land known as Land Reference No. KAJIADO/DALALEKUTUK/3700
  3. 3.The costs of this application is awarded to the applicant and should be borne by the 1st and 2nd Respondents equally

Authorities

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Legislation

  • Land Registration ActSections 76, 77, 78(1) & (2)
  • Constitution of KenyaArticle 47
  • Fair Administrative Actions ActSection 4

Cases cited (6)

  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Christopher Kitur Kipwambok Vs Vipulratilal Dodhia & 3 others
    ELC No. 65/2013
  • Victoria Distributors Vs Joseph Abwao Nyawir
    ELC No. 222 of 2015 (Kisumu)
  • David Macharia Kinyuru Vs District Land Registrar Naivasha & Another
    Nakuru ELC Misc. Appl. No. 331 of 2016
  • Joyce Waithira Mwangi V Thika Land Registrar
    (2018) eKLR
  • Livingstone Kunini Ntutu Vs Minister for Lands & 4 others
    (2014) eKLR
Jurisdiction invoked
Judicial review jurisdiction over administrative action; Article 47 of the Constitution and sections 76, 77 and 78 of the Land Registration Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Daniel Piranto Ole Nchani v Deputy County Commissioner Kajiado & 3 others Ex parte Daniel Piranto Ole Nchani [2019] KEELC 1668 (KLR)", Case Analysis (2019). Judicial Review Application (Notice of Motion dated 13th February, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1668/eng@2019-09-16

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