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ELCAllowedELC Judicial Review Case No. 36 of 2018 (formerly Machakos ELC Judicial Review No. 131 of 2011)· [2020] KEELC 3211 (KLR)

Republic v Commissioner of Lands & another; Ex -parte Capri Construction Limited [2020] KEELC 3211 (KLR)

Environment and Land Court
12 March 2020
2,614 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The ex parte applicant, Capri Construction Limited, sought certiorari, mandamus and prohibition by Notice of Motion dated 3rd June 2011, challenging Gazette Notice No. 15581 of 26th November 2010 by which the District Land Registrar, Kajiado revoked its title to NGONG/NGONG BLOCK 2/580. The applicant, registered proprietor of a 99-year lease since 2009 (acquired for Kshs. 2,300,000/=), contended that the revocation was made without notice or hearing, was ultra vires the Registered Land Act, and violated its constitutional rights to property and fair hearing. The respondents filed no response. The court, applying the Council for Civil Service Unions framework and Article 47, held that judicial review concerns the decision-making process rather than merits. It found the Gazette Notice showed no notification to the applicant; that the Registrar's act was administrative action effected in breach of natural justice and procedural fairness; and that under sections 142 and 143 of the repealed Registered Land Act, rectification required court intervention, protecting a proprietor in possession who had acquired land for value. Relying on Kuria Greens Limited, the court found the Registrar acted ultra vires and violated the applicant's constitutional rights. The application was allowed in full: certiorari quashing the Gazette Notice revocation, mandamus compelling the 2nd Respondent to issue a fresh Gazette Notice within 90 days, and prohibition against physical takeover of the title, with costs to the ex parte applicant.

Key legal issues

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01

Whether the District Land Registrar's revocation of the ex parte applicant's title via Gazette Notice No. 15581 was lawful

Holding

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).

Reasoning

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.

02

Whether the applicant's constitutional property rights were violated

Holding

Yes, the cancellation without notice violated Article 40 (property) and Article 50 (fair hearing).

Reasoning

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.

p. 3
03

Costs

Holding

Costs awarded to the ex parte applicant because the respondents inconvenienced it.

Reasoning

Costs ordinarily follow the event. Since the respondents' unlawful revocation inconvenienced the applicant, the applicant was held entitled to costs of the application.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Costs to the ex parte Applicant

Authorities

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Legislation

  • Law Reform ActSections 8 and 9
  • Civil Procedure RulesOrder 53
  • Constitution of KenyaArticles 40, 47, 48, 50
  • Registered Land Act (repealed)Sections 27, 28, 142, 143
  • Government Lands ActCap 280
  • Trust Land ActCap 288

Cases cited (7)

  • Council for Civil Service Unions vs. Minister for Civil Service
    [1985] A.C. 374
  • Kuria Greens Limited V Registrar of Titles & Another
    (2011) eKLR
  • Fahim Yasin Twaha & Another V District Land Registrar Lamu
    (2011) eKLR
  • Kingdom Kenya 01 Limited versus the District Land Registrar, Narok & Fifteen (15) others
    [2018] eKLR
  • Commissioner of Lands –versus Hotel Kunste
    [1997] eKLR
  • David Mugo t/a Manyatta Auctioneers –versus Republic
    Civil Appeal No. 265 of 1997 (UR)
  • Zakayo Michubu Kibwange –versus Lydia Kagina Japheth and 2 others
    [2014] eKLR
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

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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 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.