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ELCAllowedJudicial Review Case No. 3 of 2017· [2020] KEELC 1944 (KLR)

Republic v County Land Registrar, Busia County & Phanice Ngaira (Interested Parties); Ex-parte Magret Akoth Omondi [2020] KEELC 1944 (KLR)

Environment and Land Court
25 June 2020
1,843 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court quashed a Land Registrar's cancellation of a title because the owner was never given notice or a chance to be heard.

What this practically means

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Executive summary

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The Environment and Land Court at Busia determined a notice of motion dated 15th December 2017 in Judicial Review Case No. 3 of 2017, in which the ex-parte applicant, Magret Akoth Omondi, sought orders of certiorari, prohibition and mandamus to quash a letter dated 16th August 2017 by the County Land Registrar, Busia cancelling her title to L.R No. Marachi/Esikoma/2717. The applicant deposed that she purchased 1¾ acres from Obuya Muyodi out of parcel Marachi/Esikoma/371 and obtained title on 14th June 2017, while the 2nd Interested Party, Phanice Ngaira, had separately bought one acre from the same seller and obtained a court order in Busia CMCC 222 of 2012 compelling transfer of her portion. The Registrar's letter cancelled the applicant's title under Section 79(1) and (2) of the Land Registration Act, alleging the subdivision and sale contravened the court order. The 1st Interested Party filed no response and the 2nd Interested Party filed no reply despite leave, so the applicant's facts were uncontroverted. The court held that the Registrar contravened Sections 4(3) and 4(4) of the Fair Administrative Actions Act by cancelling the title without notice or a hearing, and also breached Section 79 of the Land Registration Act, since his letter effected cancellation rather than serving as the required 90-day notice. Further, the consent order did not bar the registered owner from other dealings, and the letter issued well after the 90-day period and the return date of 23rd May 2017. The court found the applicant rightly aggrieved and allowed the application in terms of prayer (a), granting certiorari, prohibition and mandamus, with costs awarded to the applicant and payable by the 1st Interested Party. Judgment was delivered on 25th June 2020 by A. Omollo J.

Key legal issues

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01

Whether the cancellation of the applicant's title without a hearing was lawful

Holding

The cancellation contravened Sections 4(3) and 4(4) of the Fair Administrative Actions Act; the Registrar effected the cancellation without notice or a hearing, so certiorari, prohibition and mandamus were warranted.

Reasoning

The Registrar's letter did not attach evidence supporting his conclusion that the applicant's portion overlapped the 2nd Interested Party's portion, and there was no indication that the applicant was summoned before cancellation. The letter purported to effect the cancellation immediately rather than serve as notice. An innocent purchaser for value without notice was therefore deprived of her title without a hearing, justifying the review orders.

p. 3
02

Whether the Registrar complied with Section 79 of the Land Registration Act

Holding

No. Rectification affecting a proprietor's title requires the proprietor's consent, or fraud/lack of care, or injustice, and a 90-day written notice; none was given.

Reasoning

Section 79(2) permits alteration affecting title only without consent where the proprietor caused the error by fraud or lack of proper care or where it would be unjust not to alter, and even then a 90-day written notice must be given. The Registrar's letter of 16/8/2017 operated as immediate cancellation under Section 79(1) and (2), contravening the statutory procedure and thus being ultra vires.

p. 3
03

Whether the court order in Busia CMCC 222 of 2012 justified the cancellation

Holding

No. The order did not restrict the registered owner from dealing with the suit land, and the Registrar's letter was issued months after the 90-day period and the return date had lapsed.

Reasoning

The order of 15/2/2017 directed the registered owner to subdivide and transfer a portion to Phanice Ngaira within 90 days, but did not bar other dealings. The parties were to report back on 23/5/2017, yet the impugned letter issued on 16/8/2017, well past the deadlines, so disobedience of the order could not sanitize the ultra vires action.

p. 3

Legal principles established

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  • A Land Registrar has power under Section 79(1) & (2) of the Land Registration Act to rectify the register only after following the procedure laid down thereunder, including notice and an opportunity to be heard; failure to do so renders the action ultra vires.
  • Where an administrative action adversely affects a person's rights, the administrator must give prior and adequate notice and an opportunity to be heard under Section 4(3) of the Fair Administrative Actions Act.

Court orders

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  1. 1.Judicial review orders of certiorari, prohibition and mandamus granted in terms of prayer (a) of the motion, quashing the County Land Registrar's letter dated 16/8/2017 cancelling the applicant's title to L.R No. Marachi/Esikoma/2717
  2. 2.Costs of the application awarded to the applicant, payable by the 1st Interested Party

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 3, 3A, 63(e)
  • Civil Procedure RulesOrder 53
  • Fair Administrative Actions ActSections 4(3), 4(4)
  • Land Registration ActSections 79(1), 79(2)
  • Constitution of Kenya 2010
Jurisdiction invoked
Sections 1, 1A, 3, 3A and 63(e) of the Civil Procedure Act and Order 53 of the Civil Procedure Rules; supervisory judicial review jurisdiction of the High Court/ELC

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 County Land Registrar, Busia County & Phanice Ngaira (Interested Parties); Ex-parte Magret Akoth Omondi [2020] KEELC 1944 (KLR)", Case Analysis (2020). Judicial Review Case No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1944/eng@2020-06-25

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