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ELCAllowedJudicial Review (Notice of Motion dated 20/11/2019)· [2021] KEELC 4018 (KLR)

Republic v District Land Registrar Meru North & another Ex parte Kennedy Kimathi; M’Itabari M’Muriki (Interested Party) [2021] KEELC 4018 (KLR)

Environment and Land Court
17 March 2021
3,506 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a Land Registrar cannot cancel your title deed; only a judge can, and only after you've been heard.

What this practically means

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Executive summary

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This was a judicial review application by the registered owner of land parcels ITHIMA/NTUNENE/4578 and 4579, challenging a letter dated 7th November 2019 by the Land Registrar, Meru North District, requiring surrender of his title deeds for cancellation within 14 days on pain of cancellation under section 79(2)(a) of the Land Registration Act. The Registrar said he acted on a complaint by the interested party, who alleged the suit parcels had been frauduly transferred without his consent, and relied on his investigation powers under sections 14 and 79 of the Land Registration Act, citing discrepancies between the sale agreement, LCB consents, mutation forms and title issuance dates. The ex parte applicant argued he was condemned unheard, in breach of Article 47 of the Constitution and section 4 of the Fair Administrative Action Act, and that only a court may cancel a title. The court found the respondents and interested party could not agree on the date of the alleged hearing and no notice or proceedings were produced, so the applicant was never accorded a chance to be heard. On jurisdiction, the court held that section 79(2) rectification does not include cancelling a registered person's title, following the Yosabia Kerubo Manyura decision, and that the Registrar acted ultra vires and without jurisdiction. Certiorari and prohibition were granted; each party was ordered to bear their own costs.

Key legal issues

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01

Whether due process was followed before the letter of 7 November 2019

Holding

No hearing or notice was proved; the respondents and interested party gave conflicting dates for the alleged meeting and no proceedings or notice were produced, breaching Article 47 and section 4 of the Fair Administrative Action Act.

Reasoning

The ex parte applicant denied attending any meeting. The respondent claimed a meeting on 28/10/2019 while the interested party cited 25/09/2019, and no notice or record of proceedings was produced. In the absence of credible documentary proof of a hearing, the court could not uphold the claim that a meeting took place, and concluded the applicant was condemned unheard, in breach of the rules of natural justice.

p. 3
02

Whether the Land Registrar had jurisdiction to cancel the titles

Holding

Section 79(2) permits rectification affecting title only in limited cases and on ninety days' written notice; it does not empower cancellation of a title, which only a court may direct under section 80(1).

Reasoning

The letter of 7.11.2019 threatened cancellation under section 79(2)(a). The court adopted the reasoning in Yosabia Kerubo Manyura that the Registrar's rectification powers cover only errors, mistakes or omissions not materially affecting a proprietor's interests, and that cancellation of a title materially affects those interests and is a matter for the court. The Registrar therefore acted ultra vires.

p. 5
03

Whether the ex parte applicant is entitled to the reliefs sought

Holding

Both judicial review orders were merited because the decision lacked procedural foundation and was made without jurisdiction.

Reasoning

Having found no procedural process preceded the decision and that the Registrar acted outside his mandate, the court held the prayers in the substantive motion merited and allowed certiorari and prohibition, with no order as to costs.

p. 5

Legal principles established

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  • A Land Registrar's rectification powers under section 79 of the Land Registration Act do not extend to cancelling a registered proprietor's title; only the court may direct cancellation of a registration.
  • Before administrative action adversely affecting a person's rights, Article 47 of the Constitution and section 4 of the Fair Administrative Action Act require prior notice and an opportunity to be heard; an affected proprietor may not be condemned unheard.
  • Allegations of fraud must be strictly proved through evidence tested in a court of law, following R.G Patel v Laiji Makanji.

Court orders

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  1. 1.An order of certiorari quashing the proceedings, findings and/or decisions of the 1st respondent in respect of land parcels ITHIMA/NTUNENE/4578 and 4579 as contained in the 1st respondent's letter dated 7th November 2019
  2. 2.An order of prohibition prohibiting the 1st respondent from cancelling the ex parte applicant's title deeds in respect of the said parcels
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 53 rule 3(1); Order 21 rule 1
  • Law Reform ActSections 8 and 9
  • Constitution of Kenya, 2010Article 47(1) and (2)
  • Fair Administrative Action ActSection 4(1),(2),(3)
  • Land Registration ActSections 14(a) and (b), 79(1) and (2), 80(1)

Cases cited (20)

  • Republic v The Registrar of Titles and 2 others Ex parte Redcliffe Holdings Limited
    [2016]eKLR
  • Larkin v. Nassau Electric R.R. Co.
    98 n.e.465 (State of New York)
  • Satima Enterprises Limited v The Registrar of Titles and 2 others
    [2012]eKLR
  • Republic v Chief Land Registrar and another Ex parte Yosabia Kerubo Manyura
    [2018]eKLR
  • William Ouko Ogolla v AG and 2 others
    [2015]eKLR
  • Kenya National Human Rights Commission v Communication Authority of Kenya and 4 others
    [2018]eKLR
  • Republic v Chairperson Business Premises Rent Tribunal & Another Ex parte Keiyo Housing Cooperative Society Ltd & Another
    [2014]eKLR
  • Peris Wambogo Nyaga V Kenyatta University
    [2014]eklr
  • Republic v Judicial Service Commission Ex parte Pareno
    [2004]eKLR
  • Republic v Director of Immigration Services & 2 others Ex parte Olamilekan Gbenga Fasuyi & 2 others
    [2018]eKLR
  • Republic v Kenya Revenue Authority & another Ex parte Tradewise Agencies
    [2013]eKLR
  • Munyu Maina v Hiram Gathiha Maina
    (2013) eKLR
  • Republic v AG & Another
    [2015]eKLR
  • Mureithi & 2 others V AG & 4 others
    KLR E&L page 707
  • Mexner & Another v AG
    (2005) 2 KLR 189
  • R.G Patel Vs Laiji Makanji
    (1957)EA 314
  • Geothermal Development Company Limited vs. Attorney General & 3 Others
    [2013] eKLR
  • Republic v County Director of Education, Nairobi & 4 others Ex-parte Abdukadir Elmi Robleh
    [2018] eKLR
  • Sangram Singh vs. Election Tribunal Kotech
    AIR 1955 SC 664
  • Kuria Greens Limited v Registrar of Titles & another
    [2011] eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act and Order 53 rule 3(1) of the Civil Procedure Rules 2010

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 District Land Registrar Meru North & another Ex parte Kennedy Kimathi; M’Itabari M’Muriki (Interested Party) [2021] KEELC 4018 (KLR)", Case Analysis (2021). Judicial Review (Notice of Motion dated 20/11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4018/eng@2021-03-17

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