Republic v Jane Nyambura Thuo Registrar of Titles Ministry of Lands, Nairobi Ex-parte Charles Joseph Maina Thuo [2021] KEELC 138 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a registrar cannot register the revocation of an irrevocable power of attorney without first hearing the affected party.
What this practically means
#Executive summary
#Key legal issues
#Validity of the revocation of an irrevocable power of attorney
The power of attorney, being irrevocable and given for valuable consideration, could not be revoked by registration of an instrument of revocation; the 2nd Respondent acted unlawfully and in excess of powers
The power of attorney expressly stated on its face that it was irrevocable. It was donated to facilitate a sale of the suit property for Kshs. 50,000/-, thus meeting the criteria of an irrevocable power of attorney, which must be irrevocable and given for valuable consideration and lapses only by operation of law such as incapacity or death. The registrar therefore had no lawful basis to register the revocation, and section 51 of the Registration of Titles Act is not mandatory.
Breach of fair administrative action and natural justice
The revocation was registered without giving the Applicant a hearing, breaching Article 47(1) of the Constitution and sections 4(1)-(3) of the Fair Administrative Action Act
The power of attorney vested an interest in land in the Applicant, and the 1st Respondent sought revocation on grounds of alleged fraudulent registration. Because the registration of the revocation would adversely affect the Applicant's interest, prior and adequate notice and an opportunity to be heard were required under Article 47(1) and the Fair Administrative Action Act. Failure to afford a hearing rendered the decision unconstitutional, unlawful and made in breach of the rules of natural justice.
Availability of certiorari, prohibition and mandamus
Certiorari lies to quash a decision made in excess of jurisdiction or in breach of natural justice; mandamus commands performance of public duty; prohibition restrains proceedings in excess of jurisdiction
Relying on Kenya National Examination Council v Republic, Ex-parte Geoffrey Gathenji Njoroge and Halsbury's Laws of England, the court confirmed that certiorari quashes decisions made without or in excess of jurisdiction or where natural justice is not complied with; prohibition directs inferior tribunals or bodies to refrain from acting in excess of jurisdiction; mandamus commands performance of a public duty where there is a specific legal right. These remedies were all apt on the facts.
Legal principles established
#- An irrevocable power of attorney given for valuable consideration cannot be revoked by the principal or by the registrar's registration of an instrument of revocation
- Natural justice demands that a person be heard before an administrative decision adversely affecting their interest in land is taken
- Section 51 of the Registration of Titles Act is not mandatory and the registrar must exercise discretion reasonably
Court orders
#- 1.The decision of the 2nd Respondent made on 4th April, 2017 to register the Notice of Revocation of Power of Attorney dated 13th March, 2017 as IP/A 69344/1 is brought to this court and quashed
- 2.An order of mandamus compelling the 2nd Respondent to reinstate in the register the Power of Attorney dated 20th January, 2005 registered as IP/A 41103/1 on 24th February 2005
- 3.An order of prohibition prohibiting the 2nd Respondent from registering the revocation of the Power of Attorney dated 20th January, 2005 unless directed to do so by an order of a court of competent jurisdiction
- 4.The orders shall not be interpreted as determining ownership of Plot No. 21 Kayole Resettlement Scheme or the validity of the Special Power of Attorney; those issues can only be determined in a civil suit with oral evidence
- 5.Each party shall bear its costs of the application
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court/Environment and Land Court; Article 47(1) of the Constitution and the Fair Administrative Action Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Jane Nyambura Thuo Registrar of Titles Ministry of Lands, Nairobi Ex-parte Charles Joseph Maina Thuo [2021] KEELC 138 (KLR)", Case Analysis (2021). Judicial Review Application dated 30th September, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/138/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.