Republic v Commissioner of Lands & another; Ex -parte Capri Construction Limited [2020] KEELC 3211 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the District Land Registrar's revocation of the ex parte applicant's title via Gazette Notice No. 15581 was lawful
The revocation was procedurally improper and ultra vires: the Registrar gave no notice or hearing and failed to invoke the court-based rectification process under sections 142 and 143 of the Registered Land Act (repealed).
Judicial review examines the decision-making process, not merits. The Gazette Notice did not indicate the applicant was notified of the intended revocation. The Registrar's act was administrative action engaging Articles 47 and 50. Without notice or hearing, the action breached natural justice and procedural fairness; under the Registered Land Act only the court could order rectification of the register on grounds of fraud or mistake.
Whether the applicant's constitutional property rights were violated
Yes, the cancellation without notice violated Article 40 (property) and Article 50 (fair hearing).
The applicant was the registered proprietor of a 99-year lease, having acquired the suit land for Kshs. 2,300,000/= with a Certificate of Lease issued on 7th October 2009. The respondents filed no response to controvert the averments. Cancelling the title administratively, without notice, contravened the constitutional protections of property and fair hearing, consistent with Kuria Greens Limited.
Costs
Costs awarded to the ex parte applicant because the respondents inconvenienced it.
Costs ordinarily follow the event. Since the respondents' unlawful revocation inconvenienced the applicant, the applicant was held entitled to costs of the application.
Legal principles established
#- A land registrar cannot revoke a title without notice to the affected proprietor; rectification of the register is governed by sections 142 and 143 of the repealed Registered Land Act and revocation without hearing is ultra vires.
- A proprietor in possession who acquired land for valuable consideration is protected from rectification under section 143(2) of the Registered Land Act.
Court orders
#- 1.An order of Certiorari quashing the decision of the District Land Registrar, Kajiado vide Gazette Notice No. 15581 of 26th November, 2010 revoking the Applicant's TITLE No. NGONG/NGONG BLOCK 2/580
- 2.An order of Mandamus compelling the 2nd Respondent to issue a fresh Gazette Notice revoking Gazette Notice No. 15581 of 26th November, 2010 with regard to TITLE No. NGONG/NGONG BLOCK 2/580 within 90 days from the date of the order
- 3.An order of Prohibition prohibiting the Respondents, their servants, agents or any other person, body or authority from physically taking over TITLE No. NGONG/NGONG BLOCK 2/580
- 4.Costs to the ex parte Applicant
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act (Cap 26), Order 53 of the Civil Procedure Rules and Articles 40, 47, 48 and 50 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Commissioner of Lands & another; Ex -parte Capri Construction Limited [2020] KEELC 3211 (KLR)", Case Analysis (2020). ELC Judicial Review Case No. 36 of 2018 (formerly Machakos ELC Judicial Review No. 131 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3211/eng@2020-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.