Fatuma Shee & another v County Lands Registrar Kilifi & 4 others [2020] KEELC 1198 (KLR)
The bottom line
#A Kenyan court restored two landowners' titles, ruling officials acted unconstitutionally by cancelling their ownership without notice or a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the cancellation and expunging of the Petitioners' title without notice was lawful
The cancellation was ultra vires and contravened the Constitution and relevant laws; the Petitioners were lawful registered proprietors
The Respondents proceeded on a complaint by the 4th Respondent, reconstructed the register and issued a new title without notifying or involving the Petitioners, who were the registered proprietors since 2008. Section 80 of the Land Registration Act permits rectification only on proof of fraud or mistake, and Article 47(2) and the Fair Administrative Actions Act required written reasons, notice and a hearing. None of these requirements were met; indeed, the National Land Commission later found the property belonged to the Petitioners.
Whether the Petitioners' title was fraudulently acquired
The Petitioners did not acquire their title fraudulently; upon registration in 2008 their interests were protected by law
The 4th Respondent alleged fraud in his Advocates' letter but adduced no proof. The Petitioners bought the land from Abdalla Rashid Said and Gregolela Sandra in 2008 for consideration, following a chain of registered transfers from the Government's 2000 allocation. Under Section 26 of the Land Registration Act, their title could only be challenged on fraud or misrepresentation they were party to, which was not established.
Whether the Respondents had power to cancel the title and rectify the register administratively
There was no lawful power exercised; the Chief Land Registrar's directive letters authorising expungement and rectification had no legal basis
Rectification under Section 80 of the Land Registration Act requires a court order satisfied that a registration was obtained by fraud or mistake, with protections for proprietors in possession. Here the Chief Land Registrar, acting on the 2nd Respondent's directions, merely wrote letters instructing the 5th Respondent to expunge records and rectify the register in favour of the 4th Respondent. The court found it unclear where the Respondents derived such power, and the process bypassed the statutory and constitutional safeguards.
Legal principles established
#- A registered proprietor's title is prima facie evidence of absolute ownership and may only be challenged on grounds of fraud or misrepresentation under Section 26 of the Land Registration Act, 2012
- A register cannot be rectified against a proprietor in possession who acquired the land for valuable consideration without knowledge of, or contribution to, the fraud or mistake
- Administrative action adversely affecting rights must be accompanied by written reasons, prior notice and an opportunity to be heard
Court orders
#- 1.Cancellation and/or deletion/expunging of all entries in the reconstructed Register for Kilifi/Jimba/386 showing the 4th Respondent as absolute proprietor
- 2.Rectification of the register for Plot Kilifi/Jimba/386 to reflect the Petitioners as absolute proprietors and cancellation of the title issued to the 4th Respondent on 21st March 2018
- 3.A declaration that the Gazette Notice No. 12517 dated 22nd December 2017 and the reconstruction of the register are ultra vires, unconstitutional, illegal and void ab initio
- 4.A conservatory order restraining the 4th Respondent from interfering with the Petitioners' occupation and possession of the suit property
- 5.A conservatory order of inhibition against the 1st Respondent from registering any further dealings or encumbrances on the title
- 6.A declaration that the actions of the 1st, 2nd and 5th Respondents infringed the Petitioners' rights under Articles 31, 40, 47 and 50 of the Constitution
- 7.Costs of the Petition to be paid jointly and severally by the Respondents with interest at court rates
- Jurisdiction invoked
- Article 23 and Articles 40, 47, 50 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights and land-related claims before the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fatuma Shee & another v County Lands Registrar Kilifi & 4 others [2020] KEELC 1198 (KLR)", Case Analysis (2020). Petition dated 20th September 2018 (filed 24th September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1198/eng@2020-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.