Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC Miscellaneous Application No. E015 of 2021· [2021] KEELC 50 (KLR)

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)

Environment and Land Court
21 October 2021
2,649 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

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

#
The ex parte applicant, administrator of the estate of Raphael Midhodho, sought judicial review orders of certiorari and prohibition against the Minister for Lands and Settlement's decision of 14 January 2021, which allowed the interested party's appeal (No. 59 of 2010), ordered deletion of the deceased's name from the land records and substitution of the interested party's name in respect of parcel SIAYA/NYANGOMA/4754. The applicant contended that the land adjudication process had concluded, the property was registered in the deceased's name on 8 March 2017, the appeal to the Minister was filed in 2010 - seven years after the Land Adjudication Officer's decision of 14 July 2003 - and was therefore time-barred under section 29(1) of the Land Adjudication Act, and that the Minister had no power to cancel titles. The respondents and interested party did not file submissions. The court found that the Minister acted in excess of jurisdiction and ultra vires, having entertained an out-of-time appeal over land no longer under adjudication, and having no statutory power to direct cancellation of title or deletion of a proprietor from the register. Applying Keroche Industries and English authorities on abuse of power, and Article 47 of the Constitution on fair administrative action, the court held the Minister's decision violated Article 47 and constituted abuse of powers. The court granted certiorari quashing the Minister's decision, prohibition restraining the Bondo Sub County Land Registrar from cancelling the deceased's name, and awarded costs to the ex parte applicant.

Key legal issues

#
01

Whether the Minister acted in excess of jurisdiction

Holding

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.

Reasoning

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.

p. 3
02

Whether a mandatory procedure or condition was not complied with

Holding

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.

Reasoning

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.

p. 3
03

Whether the 1st Respondent was unfair and biased

Holding

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.

Reasoning

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.

p. 4

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. 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. 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. 3.Costs of the proceedings to the ex parte applicant

Authorities

#

Legislation

  • Land Adjudication Act (Chapter 284, Laws of Kenya)Sections 26, 29(1), 29(2), 29(3), 29(4)
  • Fair Administrative Action ActSection 7(2)(b)
  • Constitution of Kenya, 2010Article 47(1) and (2)
  • Interpretation and General Provisions ActSection 38(2)
  • Land Registration Act

Cases cited (6)

  • Livingstone Ntutu vs the Minister of Lands
    Nairobi Misc Appeal No. 169 of 2019
  • Republic vs Minister for Lands & Another Ex Parte Joash Onyano Opiyo, Daniel Omondi Owira & Another (Interested Parties)
    Kisumu ELC JR Misc. Cause No. 16 of 2018
  • Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others
    Nairobi HCMA No. 743 of 2006 [2007] KLR 240
  • Reg vs. Secretary of State for the Environment Ex Parte NottinghamShire Country Council
    [1986] AC
  • Reg vs. Inland Revenue Commissioners, ex-parte National Federation of Self Employed and Small Business Ltd
    [1982] AC 617
  • R (Bibi) vs. Newham London Borough Council
    [2001] EWCA 607, [2002] WLR 237
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.