Republic v Director of Surveys & 2 others;Ex-Parte Schon & Associates Limited & 5 others; National Land Commission (Interested Party) [2020] KEELC 714 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a dispute over contested land documents and fraud allegations can be resolved in judicial review proceedings
It cannot; the application is incompetent and must be filed as a civil suit or petition
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.
Standard of proof of fraud
Fraud must be pleaded and proved to a standard higher than a balance of probability
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.
Applicants' procedural complaints (breach of natural justice, notice under Sections 79(2) Land Registration Act and Section 33 Survey Act)
Not determined on the merits; the application failed on the forum objection
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 14th June, 2018 is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.