Republic v County Land Registrar, Busia County & Phanice Ngaira (Interested Parties); Ex-parte Magret Akoth Omondi [2020] KEELC 1944 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the cancellation of the applicant's title without a hearing was lawful
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.
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.
Whether the Registrar complied with Section 79 of the Land Registration Act
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.
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.
Whether the court order in Busia CMCC 222 of 2012 justified the cancellation
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.
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.
Legal principles established
#- 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
#- 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.Costs of the application awarded to the applicant, payable by the 1st Interested Party
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.