Republic v Distrcit Land Registrar Thika Lands Registr; Susan Mutiso & 2 others ( Interested Parties); Ex - Parte Micheal Kamande Gachukia [2019] KEELC 3121 (KLR)
The bottom line
#A Kenyan land registrar cannot revoke your title without a court order and proper notice; this Thika court restored a revoked land title.
What this practically means
#Executive summary
#Key legal issues
#Fair administrative action
The Ex parte Applicant was not accorded fair administrative action; he was condemned unheard and was not issued with the statutory 90-day notice of intended alteration of title.
The Registrar's ruling showed the hearing culminating in revocation took place on 15th June 2017 when the Applicant was not present, contrary to the audi alteram partem rule and Article 47 of the Constitution. Section 79 of the Land Registration Act required a written 90-day notice before any alteration affecting the title of a proprietor, which was never issued before the title was revoked.
Natural justice and right to be heard
The revocation contravened the rules of natural justice and the Applicant's right to a fair hearing under Article 50(1) of the Constitution.
The hearing of 15th June 2017 proceeded in the Applicant's absence and drastic orders were issued against him. Citing Sceneries Limited v National Land Commission, the court held the right to a fair hearing encompasses being informed of the case, an opportunity to respond, and a hearing before an independent body, none of which was afforded to the Applicant.
Jurisdiction of the Land Registrar to revoke title
The District Land Registrar, Thika had no jurisdiction to revoke a registered title; his action was ultra vires and in excess of his mandate.
Whether a title was illegally obtained could only be determined through suitable judicial proceedings, not by unilateral administrative revocation. No such judicial process existed here, so the Registrar's revocation was without legal basis and due process, following the authority of Republic v Registrar of Titles Mombasa Ex-Parte A.K. Abdulgani Limited and Franns Investments Limited.
Merits of the judicial review orders
The Notice of Motion dated 13th November 2017 was merited; Certiorari and Mandamus issued as sought.
Applying the Pastoli criteria of illegality, irrationality and procedural impropriety, the Registrar's decision was tainted with illegality, being ultra vires. Since certiorari quashes decisions made without jurisdiction and mandamus compels performance of a statutory public duty, the court quashed the revocation and compelled the Registrar to reinstate the Applicant as registered proprietor.
Legal principles established
#- A Land Registrar has no power to revoke a registered title to land; revocation may only follow a suitable judicial proceeding.
- No alteration affecting the title of a proprietor may be made without the proprietor's consent unless statutory exceptions are satisfied, and a written notice of ninety days must first be given to the proprietor.
- An order of certiorari will issue to quash a decision made without jurisdiction or in excess of jurisdiction or where the rules of natural justice are not complied with.
Court orders
#- 1.An order of Certiorari quashing the impugned decision of the Respondent in the Ruling dated 25th August 2017 revoking title for Gatuanyaga/Ngoliba 1/1400
- 2.An order of Mandamus restoring the Ex parte Applicant as the holder of the revoked title deed
- 3.Parties to pursue the right channel in seeking a determination of who is the rightful owner of the suit property
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court/Environment and Land Court under Article 47 of the Constitution and orders of Certiorari and Mandamus
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Distrcit Land Registrar Thika Lands Registr; Susan Mutiso & 2 others ( Interested Parties); Ex - Parte Micheal Kamande Gachukia [2019] KEELC 3121 (KLR)", Case Analysis (2019). Judicial Review Application (Notice of Motion) dated 13th November 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3121/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.