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ELCAllowedJudicial Review Application (Notice of Motion dated 29th July 2017), Kericho· [2021] KEELC 292 (KLR)

Republic v Land Registrar, Bomet & Elizabeth Chepkemoi Kigen Ex-parte Simon Kibet Chepkwony [2021] KEELC 292 (KLR)

Environment and Land Court
9 December 2021
2,467 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a landowner to challenge a Land Registrar's cancellation of his title, ruling the six-month judicial review deadline did not apply.

What this practically means

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Executive summary

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By a Notice of Motion dated 29th July 2017, Simon Kibet Chepkwony sought leave to apply for an order of Certiorari to quash the decision of the Bomet County Land Registrar made on 25th May 2016 cancelling his registration as owner of Kericho/Kongotik/899 and registering Elizabeth Chepkemoi Kigen as owner. The Applicant claimed his title derived from a judgment and decree in Bomet Civil Suit No. 166 of 2003 adopting a Tribunal award arising from a woman-to-woman marriage dispute between the two wives of his late grandmother, Chemarus Kigen. He argued the Registrar acted in excess of jurisdiction, breached natural justice and could not sit on appeal over a court decree. The 2nd Respondent opposed, contending the Land Disputes Tribunal had no mandate over registered land under Section 3 of the Land Disputes Tribunal Act, so the adopted decision and the resulting title were nullities incapable of being quashed through judicial review, and that she had occupied the land for over 50 years. The 1st Respondent did not respond. Applying the Court of Appeal decision in Republic v Kenya National Highways Authority ex-parte Amica Business Solutions Limited, the court held that the six-month limitation in Order 53 rule 2 did not apply because the impugned decision was conveyed by a letter rather than through formal quasi-judicial proceedings. Associating itself with the Okenye decision on Article 47, the court found the application merited, granted leave, directed filing of the substantive motion within 30 days, and awarded costs to the Applicant. Ruling delivered via Microsoft Teams at Kericho on 9th December 2021 by M.C. Oundo, Environment and Land Judge.

Key legal issues

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01

Limitation under Order 53 rule 2 for certiorari

Holding

Although filed outside six months, the application for leave was competent because the impugned decision was conveyed by a letter, which is not the kind of proceeding contemplated by Order 53 rule 2

Reasoning

The court applied the Court of Appeal decision in the Amica Business Solutions case, holding that Order 53 rule 2 was meant to cover judicial and quasi-judicial proceedings where there was a hearing and affected parties were informed. A letter dated 25th May 2016 from the Land Registrar copied to the Applicant did not qualify as an act contemplated under Section 9(3) of the Law Reform Act and Order 53 rule 2, so the six-month limit did not bar the application for leave.

p. 4
02

Leave to apply for certiorari against the Land Registrar's decision

Holding

The application for leave was merited and leave was granted, with the substantive motion to be filed within 30 days

Reasoning

The Applicant's grievance was that the Bomet Land Registrar cancelled his title to Kericho/Kongotik/899, issued pursuant to a decree in Bomet Civil Suit No. 166 of 2003, and registered the 2nd Respondent without jurisdiction. The 2nd Respondent argued the underlying Tribunal-derived title was a nullity. The court, on the leave stage and associating itself with Article 47 jurisprudence, found the application merited and granted leave with costs.

p. 4

Legal principles established

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  • The six-month limitation in Order 53 rule 2 applies to judicial and quasi-judicial proceedings with formal hearings, not to letters sent to specific persons in response to their requests
  • Relief for administrative grievances is now measured against constitutional standards under Article 47 rather than the common law

Court orders

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  1. 1.Leave granted to apply for an order of Certiorari to remove into the High Court and quash the order/decision of the Bomet County Land Registrar made on 25th May 2016 cancelling the Applicant's registration as owner of Kericho/Kongotik/899 and registering the 2nd Respondent
  2. 2.The Applicant to file his substantive motion within 30 days upon delivery of the ruling
  3. 3.Costs of the application granted to the Applicant

Authorities

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Legislation

  • Land Registration ActNo. 3 of 2012, Section 79
  • Law Reform ActSection 9(3)
  • Civil Procedure RulesOrder 53, rule 2
  • Land Disputes Tribunal ActSection 3
  • Constitution of Kenya, 2010Article 47

Cases cited (2)

  • Republic -vs- Kenya National Highways Authority & 2 others ex-parte Amica Business Solutions Limited
    [2016] eKLR
  • Republic v Ministry of Lands, Housing and Urban Development & 4 others; Jeremiah Otieno Okenye (Interested Party) Exparte Osoro Kennedy Omwoyo
    [2019] eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court under Order 53 of the Civil Procedure Rules and Section 9 of the Law Reform Act; Article 47 of the Constitution on fair administrative action

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 Land Registrar, Bomet & Elizabeth Chepkemoi Kigen Ex-parte Simon Kibet Chepkwony [2021] KEELC 292 (KLR)", Case Analysis (2021). Judicial Review Application (Notice of Motion dated 29th July 2017), Kericho. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/292/eng@2021-12-09

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