Sabina Nyambura Githina & another v Land Registrar, Thika Land Registry & 3 others; Real Capital Ltd (Interested Party) [2021] KEELC 2928 (KLR)
The bottom line
#Kenya's land registrar cannot cancel your title without a court order and prior notice — doing so is unconstitutional and will be reversed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over prayers relating to criminal investigations and prosecution
The ELC lacks jurisdiction to determine the three prayers concerning criminal investigation, prosecution and the quashing of the criminal trial, as they do not relate to environment and land
Article 162(2)(b) and Section 13 of the Environment and Land Court Act confine the Court to disputes on environment and the use, occupation of, and title to land. Prayers (c), (d) and (g) concern criminal investigation and prosecution, not land use or title. Citing Owners of Motor Vessel 'Lilian S', the Court held it must down its tools on those prayers while proceeding on the land-related prayers.
Fair administrative action in cancellation of title
The cancellation of the deceased's registration and registration of the Interested Party without notice or hearing breached Article 47 and the rules of natural justice
The Green Card showed Charles Githina Mwangi was registered owner on 21st March 2006 and was deregistered without notice or hearing. The 2014 consent withdrawing ELC 355 of 2008 contained no agreement that the Interested Party be registered as owner. A Land Registrar cannot cancel a registration; doing so without a court order is ultra vires. The 1st Petitioner, as administrator, was condemned unheard.
Rights of the 2nd Petitioner
No violation of the 2nd Petitioner's rights was established because no duty to notify her was owed by the 1st Respondent
The Court distinguished between the 1st Petitioner as administrator and registered owner's successor-in-interest and the 2nd Petitioner. Since the Registrar had no statutory or legal obligation to notify the 2nd Petitioner before cancelling the deceased's registration, no breach of her rights arose.
Remedies for the constitutional violations
The 1st Petitioner was entitled to declarations, reinstatement of the cancelled entries, a permanent injunction and general damages of Kshs. 100,000/=
Article 23(3) empowers the Court to grant appropriate relief. The unlawful and unconstitutional cancellation could not stand, so a mandatory injunction reversing the entries and reinstating the deceased as registered owner issued, with a permanent injunction protecting the 1st Petitioner's possession, plus general damages.
Legal principles established
#- A Land Registrar has no power to cancel a person's registration of title; cancellation can only be done by a court of law or competent tribunal, and purporting to do so is ultra vires
- A person whose title is to be cancelled is entitled to fair administrative action and the rules of natural justice, including prior notice and a hearing
- A decision made in violation of natural justice is no decision at all
- A court without jurisdiction must down its tools at once
Court orders
#- 1.A Declaration that the 1st Petitioner's right to property has been violated by the 1st Respondent contrary to Article 40(1) of the Constitution.
- 2.A Declaration that the 1st Respondent's actions resulting in the cancellation of entries numbers 7,8,9,10,11,12,13,14 and 15 on the register in respect of Title Number Ruiru/Ruiru East Block 7/84 without notice to the 1st Petitioner and without due process contravened the 1st Petitioner's right to fair administrative action under Article 47 of the Constitution.
- 3.An order of mandatory injunction directed at the 1st Respondent to reverse the entry effected cancelling the entries numbers 7,8,9,10,11,12,13,14 and 15 on the register and to reinstate the deceased registered owner.
- 4.An order of Permanent Injunction restraining the Respondents and any other party from interfering with the 1st Petitioner's rights of ownership and possession over Title Number Ruiru/Ruiru East Block 7/84.
- 5.Damages of Kshs. 100,000/= awarded to the 1st Petitioner, payable by the 1st and 4th Respondents respectively.
- 6.Liberty granted to the Interested Party to pursue the proper process for challenging the 1st Petitioner's title over the suit property.
- 7.Each party to bear its own costs of the Petition.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sabina Nyambura Githina & another v Land Registrar, Thika Land Registry & 3 others; Real Capital Ltd (Interested Party) [2021] KEELC 2928 (KLR)", Case Analysis (2021). Not stated in the judgment (Petition filed by Amended Petition dated 29th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2928/eng@2021-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.