Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedJudicial Review Motion dated 2/7/2019 (JR No. not stated in judgment)· [2021] KEELC 2978 (KLR)

Wycliffe Onyango & another v Chief Land Registrar; Lucy Akinyi Ambala & another (Interested parties) [2021] KEELC 2978 (KLR)

High Court of Kenya
2 June 2021
4,147 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court quashed a Land Registrar's declaration over privately owned land, confirming registrars cannot override official property records.

What this practically means

#

Executive summary

#
The applicants, registered proprietors of Title Number Nairobi Block 112/58 since 1997, moved the High Court by judicial review motion dated 2/7/2019 seeking certiorari to quash the Land Registrar's declaration in a letter dated 9/2/2017 to the National Land Commission that the property belonged to the late Otieno Aggrey Ambala and Lucy Akinyi Ambala; mandamus to compel registration of a withdrawal of caution lodged by Geoffrey Ochieng Ndeda and issuance of an official search; and prohibition against interference with their dealings with the land. The respondent did not respond. The 1st interested party opposed on grounds that the motion was filed outside the 21-day period fixed at leave stage, that the reliefs varied from the statement of facts, and that the applicants could not produce a letter addressed to neither of them. Her purported replying affidavit was unsworn and undated and was disregarded. The court held that the 21-day objection was belated and moot, particularly after Felix Kiprono Matagei v Attorney General declared the leave requirement unnecessary; that the disparity with the statement of facts was inconsequential; and that the letter was admissible as the subject of the review. On the merits, the registrar was found to have acted in excess of jurisdiction in denying the applicants' registration which he had previously confirmed by searches, and acted illegally in refusing to register the cautioner's prescribed notice of withdrawal. Certiorari, mandamus and prohibition were all granted, the respondent to bear costs. A fresh title allegedly issued on 23/8/2018 was left for a separate cause of action.

Key legal issues

#
01

Jurisdiction where the substantive motion was filed outside the 21-day period set at leave stage

Holding

The court retained jurisdiction; the objection was belated, moot and overtaken by the law abolishing the leave requirement

Reasoning

The directions requiring filing within 21 days had no default clause vacating leave or invalidating late motions. Parties were permitted to file substantive responses after raising the point. Further, the High Court in Felix Kiprono Matagei declared the leave requirement unnecessary under the 2010 Constitution and the Fair Administrative Action Act. The motion therefore properly proceeded to substantive hearing.

p. 3
02

Disparity between reliefs in the motion and in the statement of facts

Holding

Not fatal; since leave proceedings are no longer necessary, the statement of facts is not a mandatory requirement and the focus is the substantive motion and supporting affidavit

Reasoning

Order 53 rule 1(2) required a statement of facts to accompany the leave application. Given that leave proceedings have been declared unnecessary, the statement of facts is not mandatory under the present judicial review regime. What matters is the substantive motion and its supporting affidavit; the disparity in reliefs is therefore inconsequential.

p. 3
03

Admissibility of the impugned letter dated 9/2/2017 which was not addressed to the applicants

Holding

Admissible; it is the subject matter of the judicial review and the respondent did not contest its authorship

Reasoning

The letter was authored and signed by a Land Registrar from the respondent's office and was not contested. It concerns land claimed by the applicants and contains the decision sought to be quashed. No legal basis was laid for excluding it in judicial review proceedings where the declaration in the letter is the subject of the motion.

p. 3
04

Whether the respondent acted in excess of jurisdiction by declaring the property belonged to Otieno Aggrey Ambala and the 1st interested party

Holding

Yes; the respondent knew the applicants were registered proprietors and that the challenge suit had been dismissed

Reasoning

Official searches of 14/11/2008 and 27/11/2013 and a letter of 8/9/2009 confirmed the applicants as registered proprietors. The 1st interested party's suit HCCC 227 of 2006 challenging the registration was dismissed for want of prosecution on 12/5/2015. The respondent nevertheless declared the property belonged to the deceased and the 1st interested party, which exceeded his jurisdiction.

p. 4
05

Whether the respondent acted unlawfully in failing to register the withdrawal of caution

Holding

Yes; the cautioner had duly presented a prescribed notice of withdrawal and no other encumbrance existed

Reasoning

The only encumbrance was the 2nd interested party's caution registered on 15/6/2006. The cautioner presented a prescribed notice withdrawing it, and the 1st interested party had placed no encumbrance and had abandoned her High Court suit. Any other claimant ought to take steps to protect their interest; refusal to act on the withdrawal was wrong and illegal.

p. 4
06

Entitlement to certiorari, mandamus and prohibition

Holding

All three reliefs granted in tandem with the prayers in the motion

Reasoning

Certiorari follows from the finding that the 9/2/2017 declaration was made in excess of jurisdiction. Mandamus issues because the respondent failed to act on the prescribed notice of withdrawal of caution. Prohibition is warranted because the respondent, for unexplained reasons, was partisan in the dispute and fought the applicants on behalf of unknown persons despite no affidavit alleging fraud.

p. 4

Legal principles established

#
  • A land registrar acts in excess of jurisdiction by declaring a title to belong to persons other than the registered proprietors as shown on the parcel register, where fully aware of the true registration status
  • A registrar has no proper legal basis to refuse to act on a notice of withdrawal of caution presented by the cautioner in the prescribed form
  • The requirement of prior leave before bringing judicial review proceedings was rendered unnecessary by the Constitution of Kenya 2010 and the Fair Administrative Action Act of 2015, following Felix Kiprono Matagei v Attorney General
  • An unsigned and undated document cannot be construed as an affidavit and the court cannot rely on it as evidence

Court orders

#
  1. 1.An order of certiorari directed to the respondent, quashing the declaration/decision contained in the letter dated 9/2/2017 declaring that Title Number Nairobi Block 112/58 belongs to the late Otieno Aggrey Ambala and Lucy Akinyi Ambala
  2. 2.An order of mandamus directed to the respondent commanding the respondent to discharge his mandate and register the withdrawal of caution lodged on 31/10/2008 by Geoffrey Ochieng Ndeda and thereafter issue the applicants with a search for the property
  3. 3.An order of prohibition prohibiting the respondent from interfering and/or stopping the applicants from dealing with the suit property
  4. 4.The respondent shall bear costs of this suit

Authorities

#

Legislation

  • Civil Procedure RulesOrder 53 rule 3(1)
  • Civil Procedure RulesOrder 53 rule 1(2)
  • Civil Procedure RulesOrder 53 rule 4(1)
  • Civil Procedure RulesOrder 17 rule 2(1)
  • Constitution of Kenya 2010provisions rendering leave unnecessary (right to property referred to)
  • Fair Administrative Action ActAct of 2015 (generally)
  • Oaths and Statutory Declarations ActSection 18
  • Oaths and Statutory Declarations RulesRule 10
  • Civil Procedure ActSection 27

Cases cited (1)

  • Felix Kiprono Matagei v Attorney General; Law Society of Kenya [Amicus Curiae]
    [2021] eKLR
Jurisdiction invoked
Orders of certiorari, mandamus and prohibition under the Law Reform Act / Order 53 of the Civil Procedure Rules; judicial review jurisdiction of the High Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wycliffe Onyango & another v Chief Land Registrar; Lucy Akinyi Ambala & another (Interested parties) [2021] KEELC 2978 (KLR)", Case Analysis (2021). Judicial Review Motion dated 2/7/2019 (JR No. not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2978/eng@2021-06-02

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