Republic v National Land Commission & 2 others; Sadhani Limited & another (Interested Parties) Ex parte Sayani Investment Limited [2021] KEELC 4318 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the certificate of title No. I.R 180647 issued to the interested parties was amenable to quashing by certiorari
Yes. The title was issued in flagrant disobedience of a stay order and final orders of 21st September 2016, on the basis of a fraudulently procured deed plan; the acts were illegal, null and void, and setting aside the underlying judgment later did not legalise them.
The court found it undisputed that the lease of 23rd September 2016 and certificate of title of 5th October 2016 were issued while the stay order of 13th August 2014 and the final orders of 21st September 2016 were in force, prohibiting issuance of grants to anyone other than the applicant. Citing Clarke v Chadburn and Macfoy, acts done in willful disobedience of court orders are illegal and void. The subsequent setting aside of the judgment on 27th September 2018 did not cure the disobedience. Further, the 2nd respondent acted irrationally and in breach of the applicant's legitimate expectation.
Whether mandamus should issue to compel rectification of the land register
Yes. The court has jurisdiction under section 80 of the Land Registration Act to compel rectification where registration was procured irregularly, and under section 13(7)(b) of the Environment and Land Court Act to compel cancellation of records.
Although the 2nd respondent claimed to have cancelled the title, the interested parties produced an official search of 13th June 2019 showing they remained registered. Since the register had not been rectified, mandamus was necessary to compel cancellation, expunging and removal of entries relating to the interested parties' ownership of the amalgamated parcel.
Whether the court should determine the ownership of the suit properties in judicial review proceedings
No. The court declined to determine ownership, holding that it is not within the province of judicial review to resolve that highly contentious issue on affidavit evidence.
The court noted that the parties invited it to determine ownership, including the disputed letter of allotment allegedly denied by the land registrar who purportedly signed it, but held such a contentious factual issue requires viva voce evidence and lies outside judicial review, which concerns the legality of the decision-making process.
Whether the applicant had a legitimate expectation to renewal of its leases
Yes. The applicant, in possession and with unrevoked approvals of lease extension, had a legitimate expectation that its leases would be renewed, which the 2nd respondent was obliged to fulfil and violated by issuing the impugned title.
The court found it undisputed that the applicant's extension applications were approved in 2007 and never revoked, and that the applicant remained in occupation. The 2nd respondent had also been informed of irregularities in the survey as early as 26th August 2014 and its own investigations revealed the title was acquired by false pretences, yet it issued the title, acting irrationally and in breach of legitimate expectation.
Legal principles established
#- An act done in disobedience of a court order is invalid, illegal and a nullity; those who defy a court prohibition cannot claim the fruits of their defiance.
- A void act is a nullity needing no order to set it aside, and every proceeding founded on it is also bad.
- Setting aside a judgment obtained without hearing a party does not validate acts done in disobedience of that judgment before it was set aside.
- Certiorari issues to quash a determination procured by fraud or made in breach of natural justice or without jurisdiction.
- Judicial review is concerned with the decision-making process, not the merits of the decision.
Court orders
#- 1.An order of certiorari removing into the court and quashing Certificate of Title No. I.R 180647 in respect of L.R No. 209/20737 (original number 209/923-925) issued by the 1st and 2nd respondents to the interested parties on 5th October 2016
- 2.An order of mandamus compelling the 1st and 2nd respondents to rectify the land register relating to Title No. I.R 180647 in respect of L.R No. 209/20737 by cancelling, expunging and removing from the register all entries or registration relating to the interested parties' ownership of L.R No. 209/20737
- 3.The applicant shall have the costs of the suit to be paid by the interested parties
- Jurisdiction invoked
- Section 13(7)(b) of the Environment and Land Court Act, 2011 (power to grant prerogative orders) and Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & 2 others; Sadhani Limited & another (Interested Parties) Ex parte Sayani Investment Limited [2021] KEELC 4318 (KLR)", Case Analysis (2021). Judicial Review - Notice of Motion dated 19th September 2017 (JR No. 313 of 2014 related proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4318/eng@2021-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.