Republic v Minister for Lands & Settlement & 2 others Ex parte Austin Okoth Orinda (Suing as the Administrator of the estate of Raphael Midhodho); William Odongo Guya (Interested Party) [2021] KEELC 50 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed the Lands Minister's decision to cancel a registered land title because he acted without legal power.
What this practically means
#Executive summary
#Key legal issues
#Whether the Minister acted in excess of jurisdiction
Yes. The suit property was already registered in the name of Raphael Midhodho when the Minister decided the appeal, and the appeal itself was filed seven years out of time, contrary to section 29(1) of the Land Adjudication Act.
Section 29(1) allows an appeal to the Minister within sixty days of a determination under section 26. The appeal to the Minister (No. 59 of 2010) was lodged seven years after the Land Adjudication Officer's decision of 14 July 2003, so the Minister lacked jurisdiction. Further, by 2017 the land had been registered and was no longer under adjudication, so the Minister had no power over it. Citing Keroche Industries, the court held that abuse of power is treated as power not lawfully exercised.
Whether a mandatory procedure or condition was not complied with
Yes. The statutory sixty-day limitation in section 29(1) was not complied with and the Minister lacked power to direct cancellation of a title over registered land.
The ex parte applicant deponed that the appeal was filed in 2010, seven years after the Land Adjudication Officer's decision, which the court found contrary to section 29(1). Moreover, by 2017 the property was no longer under adjudication, having been registered in the deceased's name; the court found the Minister's cancellation of the title ultra vires since he lacked power to entertain the interested party's appeal over registered land.
Whether the 1st Respondent was unfair and biased
Yes. The Minister violated Article 47 of the Constitution by entertaining an out-of-time appeal and by cancelling a title when only the Land Registrar is empowered to do so.
Article 47 guarantees administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Entertaining an appeal filed seven years late was contrary to section 29(1) and amounted to abuse of powers. The Minister also usurped the Land Registrar's function of cancelling titles and ignored the 18 May 2015 search certificate confirming the property was registered to the deceased free of encumbrances and pending cases.
Legal principles established
#- The Minister under section 29 of the Land Adjudication Act has no power to cancel a title or delete a proprietor's name from the register in respect of land that has completed the adjudication and registration process.
- An appeal filed outside the statutory sixty-day period prescribed by section 29(1) of the Land Adjudication Act robs the Minister of jurisdiction.
Court orders
#- 1.An order of certiorari quashing the decision of the Minister of Lands and Settlement made on behalf of the latter by the Deputy County Commissioner of Bondo Sub county on 14.01.2021
- 2.An order of prohibition directed at the Bondo Sub County Land Registrar, prohibiting him from cancelling the name of the deceased from its register in respect of land parcel known as SIAYA/NYANGOMA/4754
- 3.Costs of the proceedings to the ex parte applicant
- Jurisdiction invoked
- Judicial review jurisdiction under Article 47 of the Constitution and the Fair Administrative Action Act; orders of certiorari and prohibition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Minister for Lands & Settlement & 2 others Ex parte Austin Okoth Orinda (Suing as the Administrator of the estate of Raphael Midhodho); William Odongo Guya (Interested Party) [2021] KEELC 50 (KLR)", Case Analysis (2021). ELC Miscellaneous Application No. E015 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/50/eng@2021-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.