Republic v Migori County Land Registrar & another; Hussein Mkuu Salim (Interested Party) Ex Parte Mary Zeresh Otsyula [2020] KEELC 3433 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a landowner's bid to restore a cancelled title, ruling judicial review cannot decide land ownership disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether the Registrar's revocation of title violated the audi alteram partem rule
No violation; the applicant was aware of the impending cancellation
From the green card (MZO3) and the annexure (PK6) to the respondent's replying affidavit, the court discerned that the applicant was aware of the impending cancellation of her title. The Registrar had power to rectify the register under section 79(2) of the Land Registration Act, so there was no procedural impropriety.
Whether ownership of the land could be determined in judicial review
It could not; ownership was in question and judicial review is not the proper forum
The court adopted its own holding in Migori ELC Misc. Application No. 61 of 2017 that where ownership of suit land is in question, allegations cannot be determined in a judicial review application. The applicant's contentions were directed at the merits of the Registrar's decision, which is outside the scope of judicial review.
Whether the application was properly before the court given the deceased's estate
The suit land formed part of the estate of a deceased person vested in the legal representative
The court was guided by the definition of 'legal representative' under section 2 of the Civil Procedure Act and the powers of personal representatives under section 82 of the Law of Succession Act, endorsing the principle that a deceased's estate is vested in the legal representative (Trouistik Union International v Jane Mbeyu).
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision
- A certificate of title acquired deceitfully does not legally pass interest in land to a third party
- The estate of a deceased person is vested in the legal representative
Court orders
#- 1.The application dated 23rd July, 2018 and filed on 24th July, 2018 be and is hereby dismissed with costs to the respondents
- Jurisdiction invoked
- Articles 40, 47, 50 and 165(7) of the Constitution; sections 8 and 9 of the Law Reform Act Cap 26; section 8 of the Fair Administrative Action Act 2015; Order 52 Rule 3(1) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Migori County Land Registrar & another; Hussein Mkuu Salim (Interested Party) Ex Parte Mary Zeresh Otsyula [2020] KEELC 3433 (KLR)", Case Analysis (2020). Judicial Review Application (Notice of Motion dated 23rd July, 2018), Migori. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3433/eng@2020-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.