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ELCDismissedJudicial Review Application, Notice of Motion dated 14th June, 2018· [2020] KEELC 714 (KLR)

Republic v Director of Surveys & 2 others;Ex-Parte Schon & Associates Limited & 5 others; National Land Commission (Interested Party) [2020] KEELC 714 (KLR)

Environment and Land Court
6 November 2020
5,676 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Machakos dismissed a judicial review attempt to cancel a rival land title, holding land ownership and fraud disputes must go to a civil suit.

What this practically means

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Executive summary

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By a Notice of Motion dated 14th June, 2018, the Ex-parte Applicants sought judicial review orders of certiorari, mandamus and prohibition against the Director of Surveys, the Land Registrar and a 3rd Respondent, challenging the cancellation of their Survey Plan F.R. No. 572/150 and the approval and registration of the 3rd Respondent's Survey Plan F.R. No. 608/165, Deed Plan No. 420804 and title to L.R. No. 31847, which they contended was carved on top of their allotted parcels L.R. Nos 30596-30602. The Applicants claimed entitlement under Letters of Allotment dated 23rd February, 1998 and complained of denial of fair hearing and breach of statutory notice requirements. The 1st and 2nd Respondents asserted the Applicants' Part Development Plan and allotments were fraudulent and unapproved, while the 3rd Respondent traced its title to a 1960 grant over L.R. No. 10029, later surrendered and subdivided, culminating in a Lease IR 196109 and Certificate of Title. The 1st and 2nd Respondents argued the dispute was a land ownership claim disguised as judicial review. The court agreed, holding that where contested documents and mutual allegations of fraud require viva voce evidence, judicial review is not the efficacious forum. Citing Sanghani Investment and Republic v Land Registrar Kilifi ex-parte Daniel Ricci, the court found the application incompetent without delving into the contested documents, and dismissed the Notice of Motion with costs on 6th November, 2020.

Key legal issues

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01

Whether a dispute over contested land documents and fraud allegations can be resolved in judicial review proceedings

Holding

It cannot; the application is incompetent and must be filed as a civil suit or petition

Reasoning

The Applicants sought to quash the 3rd Respondent's title on grounds of fraud while the authenticity of their own Letters of Allotment and Part Development Plan was itself questioned. The court, relying on Sanghani Investment and Republic v Land Registrar Kilifi ex-parte Daniel Ricci, held that such contested factual and documentary issues require viva voce evidence and cross-examination unavailable in judicial review. The court declined to delve into the contested documents and dismissed the motion on that ground alone.

p. 7
02

Standard of proof of fraud

Holding

Fraud must be pleaded and proved to a standard higher than a balance of probability

Reasoning

The court noted the parties mutually accused each other of fraudulently procured documents. Citing Okere v Kiiyukia and Katende v Haridas, it reaffirmed that fraud allegations cannot be conclusively determined on affidavit evidence annexed in judicial review; they require the heightened standard of proof applicable at a full trial.

p. 7
03

Applicants' procedural complaints (breach of natural justice, notice under Sections 79(2) Land Registration Act and Section 33 Survey Act)

Holding

Not determined on the merits; the application failed on the forum objection

Reasoning

Although counsel for the Applicants argued breach of fair administrative action, want of the ninety-day notice under Section 79(2) of the Land Registration Act and failure to notify under Section 33 of the Survey Act, the court did not rule on these allegations because the authenticity and lawfulness of the Applicants' own documents were in question, rendering judicial review an inappropriate vehicle for the reliefs sought.

p. 7

Legal principles established

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  • Judicial review is not the proper forum for determining ownership of land or fraud allegations requiring viva voce evidence; the proper mode is a civil suit or petition
  • Fraud must be proved to a standard higher than a balance of probability
  • A Certificate of Title under Section 26(1) of the Land Registration Act can only be cancelled on grounds of fraud, misrepresentation or corrupt means

Court orders

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  1. 1.The Notice of Motion dated 14th June, 2018 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Land Registration Act, 2012Section 79(2)
  • Land Registration Act, 2012Section 24(a)
  • Land Registration Act, 2012Section 26(1)
  • Survey ActSection 33
  • Survey ActSection 32
  • Survey ActSection 33(1)
  • Government Lands Act (repealed)Part Development Plan requirements

Cases cited (9)

  • Daniel Nyongesa & 4 others vs. Egerton University College
    [1992] KLR 623
  • Onyango Oloo vs. Attorney General
    [1986-1989] EA 456
  • Nelson Kazungu Chai & 9 Others vs. Pwani University
    [2014] eKLR
  • African Line Transport Co. Ltd vs. The Hon. Attorney General
    Mombasa HCCC No. 276 of 2013
  • Sanghani Investment Limited vs. Officer in Charge Nairobi Remand & Allocation Prison
    [2007] eKLR
  • Rep vs. Ex-Parte Karia
    Misc. Application 534/03
  • Republic vs. Land Registrar Kilifi & Another ex-parte Daniel Ricci
    [2013] eKLR
  • Okere vs. Kiiyukia
    [2007] E.A 304
  • Katende vs. Haridas Company Limited
    [2008] 2 E.A
Jurisdiction invoked
Judicial review jurisdiction over administrative decisions (Orders of certiorari, mandamus and prohibition), Article 47 of the Constitution invoked on fair administrative action

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, "Republic v Director of Surveys & 2 others;Ex-Parte Schon & Associates Limited & 5 others; National Land Commission (Interested Party) [2020] KEELC 714 (KLR)", Case Analysis (2020). Judicial Review Application, Notice of Motion dated 14th June, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/714/eng@2020-11-06

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