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ELCAllowedJudicial Review Application (Notice of Motion) dated 12th April 2019· [2020] KEELC 3596 (KLR)

Jane Wanjiru Nyota & 2 others v Land Registrar, Kajiado County & another [2020] KEELC 3596 (KLR)

Environment and Land Court
28 January 2020
COChristine Ochieng
2,123 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered the Land Registrar Kajiado to lift land restrictions because owners were never notified or heard before registration.

What this practically means

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Executive summary

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The ex parte Applicants, registered proprietors of 48 parcels of land in Kajiado/Dalalekutuk, moved the Environment and Land Court by Notice of Motion dated 12th April 2019 under Order 53 Rule 1 of the Civil Procedure Rules, seeking mandamus to compel the Land Registrar Kajiado to lift restrictions registered on 3rd December 2013, and prohibition against any further restriction, caution, caveat or encumbrance on the suit lands. They averred that they acquired the titles through due diligence, received certificates of official search in December 2016 revealing the restrictions, and were never notified, heard, or given reasons; their advocates' demand letter of 5th December 2017 went unanswered. The Respondents, though served, filed only a memorandum of appearance and no replying affidavit; only the Applicants filed submissions. The court framed one issue: whether the applicants were entitled to the orders sought. It held that registration of a restriction under sections 76-78 of the Land Registration Act required notice and a hearing, and that administrative action must comply with Article 47 of the Constitution and section 4 of the Fair Administrative Action Act. The Respondents' silence amounted to an admission of unlawful registration, constituting procedural impropriety and a breach of natural justice and the right not to be condemned unheard. The court noted that restrictions cannot subsist indefinitely without reasons. The application was allowed: mandamus to lift the restrictions, prohibition against future encumbrances without due process, and costs awarded to the applicants, borne by the 1st Respondent.

Key legal issues

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01

Whether the restriction was lawfully registered and maintained

Holding

The registration was unlawful; the Applicants were not notified or heard, and the Respondents' failure to reply amounted to an admission, constituting procedural impropriety.

Reasoning

Sections 76, 77 and 78 of the Land Registration Act require notice to affected proprietors and a hearing before a restriction is registered or retained. Article 47 of the Constitution and section 4 of the Fair Administrative Action Act require expeditious, lawful, reasonable and procedurally fair administrative action with reasons. The Respondents, though served, filed no replying affidavit and ignored the applicants' demand letter. Failure to accord a hearing breached natural justice and the right not to be condemned unheard. A restriction cannot subsist indefinitely without reasons.

p. 3

Legal principles established

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  • A Registrar exercising powers to register or remove a restriction must comply with the Land Registration Act, the Fair Administrative Action Act and the constitutional right to fair administrative action, including notice and a hearing.
  • Judicial review concerns the decision-making process, not the merits of the decision.

Court orders

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  1. 1.An order of mandamus compelling the 1st Respondent, the Land Registrar Kajiado, to remove and/or lift the Restriction pursuant to section 78(1) & (2) of the Land Registration Act 2012 on Land Reference Nos. KAJIADO/DALALEKUTUK/6870-6919 (as listed, excluding 6894, 6911 and 6917)
  2. 2.An order of prohibition prohibiting the Respondents from making or causing to be made any restriction, caution, caveat, encumbrance and/or impediment on the sale, transfer, alienation, leasing, charging and/or disposition of the suit lands without following due process of law
  3. 3.Costs of the application awarded to the applicants and borne by the 1st Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 1
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 47
  • Land Registration ActSections 26, 76, 77, 78(1) & (2)
  • Fair Administrative Action ActSection 4

Cases cited (4)

  • Margaret Njeri Wachira V Eliud Waweru Njenga
    (208) eKLR
  • Republic V Kenya Revenue Authority ex parte Yaya Towers Limited
    (2008) eKLR
  • Kenya Re insurance Corporation V National Land Commission
    (2018) eKLR
  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
Jurisdiction invoked
Order 53 Rule 1 of the Civil Procedure Rules 2010 (judicial review for mandamus and prohibition)

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, "Jane Wanjiru Nyota & 2 others v Land Registrar, Kajiado County & another [2020] KEELC 3596 (KLR)", Case Analysis (2020). Judicial Review Application (Notice of Motion) dated 12th April 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3596/eng@2020-01-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.