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ELCDismissedJudicial Review Application (Notice of Motion dated 23rd July, 2018), Migori· [2020] KEELC 3433 (KLR)

Republic v Migori County Land Registrar & another; Hussein Mkuu Salim (Interested Party) Ex Parte Mary Zeresh Otsyula [2020] KEELC 3433 (KLR)

Environment and Land Court
4 February 2020
1,583 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The ex-parte applicant, Mary Zeresh Otsyula, sought an order of mandamus compelling the Migori County Land Registrar to restore her certificate of title over LR NO. SUNA EAST/WASWETA 1/23467, and an order of certiorari to quash the Registrar's decision nullifying that title. She claimed she lawfully purchased the land from the interested party and that the Registrar unilaterally nullified her title on 29th May 2018 without notice or legal justification. The Registrar opposed, asserting the suit land was a subdivision of land originally owned by Mkuu Salim Mkuu (deceased), that succession had not been carried out, and that the applicant came to court with unclean hands. The interested party was served but did not respond. The court framed two issues: whether the Registrar's decision was tainted with illegality, irrationality and procedural impropriety, and whether the applicant was entitled to the orders sought. The court held that the Registrar had power to rectify the register under section 79(2) of the Land Registration Act, and that the applicant was aware of the impending cancellation, so there was no violation of audi alteram partem. Ownership of the land was in question and could not be determined in judicial review, the applicant's complaint being aimed at the merits of the decision, which judicial review does not address. The application was dismissed with costs to the respondents on 4th February 2020.

Key legal issues

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01

Whether the Registrar's revocation of title violated the audi alteram partem rule

Holding

No violation; the applicant was aware of the impending cancellation

Reasoning

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.

p. 3
02

Whether ownership of the land could be determined in judicial review

Holding

It could not; ownership was in question and judicial review is not the proper forum

Reasoning

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.

p. 3
03

Whether the application was properly before the court given the deceased's estate

Holding

The suit land formed part of the estate of a deceased person vested in the legal representative

Reasoning

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).

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Legal principles established

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  • 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

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  1. 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

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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 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.