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ELCDismissedMiscellaneous Application (Notice of Motion dated 2nd July 2020)· [2021] KEELC 1351 (KLR)

Republic v Kisii County Land Registrar & another Ex-Parte SBM Bank (Kenya) Limited; Thomas Ogeto Kebisa & another (Interested Parties) [2021] KEELC 1351 (KLR)

Environment and Land Court (High Court)
19 October 2021
JOJ.M Onyango
1,600 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's six-month deadline for judicial review does not apply to administrative acts like altering a land register, so the bank's challenge could proceed.

What this practically means

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Executive summary

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The Ex-parte Applicant, a bank that held a first legal charge dated 14th December 2015 over land title No. Central Kitutu/Daraja Mbili/3960, sought leave by Notice of Motion dated 2nd July 2020 to apply for certiorari to quash a green card and certificate of title re-issued on 2nd May 2016 by the Kisii Land Registrar, which allegedly did not disclose the charge, and for mandamus compelling reconstruction of the green card. The 1st and 2nd Interested Parties raised a Preliminary Objection asserting the leave application was null and void for being filed outside the six-month period in section 9(3) of the Law Reform Act read with Order 53 of the Civil Procedure Rules. The court disposed of the objection first, by written submissions, and framed a sole issue: whether the application was time barred. Relying on Republic vs Kenya National Highways Authority Ex-parte Amica Business Solutions and associated authorities, the court held that the six-month limitation applies only to formal judicial or quasi-judicial orders and proceedings, not to administrative acts such as altering a land register and issuing a certificate of title. Since the impugned decision was not such a formal proceeding, the application was not time barred. The Preliminary Objection was dismissed with costs to the Ex-parte Applicant, leaving the substantive judicial review application to proceed.

Key legal issues

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01

Whether the re-issuance of a green card and certificate of title constitutes 'other proceedings' under section 9(3) of the Law Reform Act

Holding

It does not; the six-month limitation for certiorari does not apply, so the application for leave is not time barred

Reasoning

The court adopted the reasoning in Republic vs Kenya National Ex-parte Amica Business Solutions that the limitation applies only to judicial or quasi-judicial proceedings where affected parties were heard or informed and a decision was capable of being disseminated. The Registrar's act of altering the register and issuing a title at the instance of the 1st Interested Party is an administrative act, not a formal order or proceeding, and is therefore outside the six-month rule.

p. 3

Legal principles established

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  • The six-month limitation in section 9(3) of the Law Reform Act and Order 53 Rule 2 applies only to formal judicial or quasi-judicial proceedings, not to administrative acts such as the alteration of a land register or issuance of a certificate of title

Court orders

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  1. 1.The Preliminary Objection by the Interested Parties is dismissed
  2. 2.Costs of the Preliminary Objection are awarded to the Ex-parte Applicant
  3. 3.The Applicant is at liberty to prosecute the substantive Notice of Motion

Authorities

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Legislation

  • Law Reform Act, Cap 25 Laws of Kenyasection 9(3)
  • Civil Procedure Rules, 2010Order 53 rule 2

Cases cited (4)

  • Republic vs Kenya National Highways Authority & 2 others Ex-parte Amica Business Solutions Limited
    2016 eKLR
  • The Goldenburg Affair Ex-parte Hon. Mwalulu & Others
    HCMA No. 1279 of 2004 (2004) eKLR
  • Republic V The Commissioner of Lands Ex-parte Lake Flowers Limited
    Nairobi HC Misc Application No. 1235 of 1998
  • Mobrama Gold Corporation Limited V Minister for Water, Energy and Minerals & Others
    Dar es Salaam Civil Appeal No. 31 of 1999 (1995-1998) 1 EA 199
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules, 2010 and section 9(3) of the Law Reform Act, Cap 25 Laws of Kenya

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 Kisii County Land Registrar & another Ex-Parte SBM Bank (Kenya) Limited; Thomas Ogeto Kebisa & another (Interested Parties) [2021] KEELC 1351 (KLR)", Case Analysis (2021). Miscellaneous Application (Notice of Motion dated 2nd July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1351/eng@2021-10-19

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