Republic v National Land Commission & 2 others Ex parte Sayani Investment Limited; Sadhani Limited & another (Interested Parties) [2021] KEELC 4454 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a title issued in defiance of court orders, confirming that titles obtained while orders prohibit them are void.
What this practically means
#Executive summary
#Key legal issues
#Whether the certificate of title No. I.R 180647 issued to the interested parties on 5th October 2016 was lawful
The title was illegal, null and void, having been issued in flagrant disobedience of the stay order of 13th August 2014 and the final orders of 21st September 2016, and on the basis of a fraudulently procured deed plan.
The lease (23rd September 2016) and certificate of title (5th October 2016) were issued after the court had prohibited issuance of grants to anyone other than the applicant, and on the strength of Deed Plan No. 356256 produced using a letter addressed to the applicant without its authority. Disobedience of court orders renders the resulting acts illegal and void. The subsequent setting aside of the 2016 judgment in JR No. 313 of 2014 did not cure that disobedience or legalise the title.
Whether the 2nd respondent acted irrationally and in breach of the applicant's legitimate expectation
Yes - the 2nd respondent violated the applicant's legitimate expectation and acted irrationally in issuing the impugned certificate of title.
The applicant was in possession with an unrevoked approval for renewal of its leases, creating a legitimate expectation that its leases would be renewed, which the 2nd respondent was obliged to fulfil. The 2nd respondent also knew of irregularities surrounding the deed plan since August 2014 and its own investigations revealed the interested parties obtained the title by false pretences, yet it issued the title.
Whether judicial review is an appropriate vehicle to determine ownership of the suit properties
No - determining ownership would require viva voce evidence and falls outside the province of judicial review; the court confined itself to the legality of the process.
Although the parties invited the court to determine ownership, the court held that ownership disputes require a trial with viva voce evidence and are not suitable for determination on affidavit evidence in judicial review. What was before the court was the legality or propriety of the process through which the title was issued, which it could determine on the material before it.
Whether a permanent conservatory order was available
Not available; under Order 53 a conservatory order can only be granted as a stay pending the hearing of the judicial review application, which had already been granted.
The application was brought solely under Order 53 of the Civil Procedure Rules. Within that framework, conservatory relief takes the form of a stay pending hearing, which the applicant obtained on 7th September 2017 when leave was granted. A permanent conservatory order was therefore not available.
Whether the court could compel rectification of the register despite the 2nd respondent's claim to have cancelled the title
Yes - despite the claimed cancellation, an official search showed the interested parties still registered; the court had power to compel rectification under section 80 of the Land Act, 2012 and section 13(7)(b) of the Environment and Land Court Act.
The 2nd respondent claimed to have cancelled the title, but the interested parties produced a search of 13th June 2019 showing they remained registered. Mandamus was therefore warranted to compel the registrar to rectify the register by expunging the interested parties' entries.
Legal principles established
#- An act done in willful disobedience of a court order is illegal and invalid and cannot effect any change in the rights and liabilities of others; the fruits of defiance are tainted with illegality.
- A void act is a nullity needing no court order to set it aside, and every proceeding founded on it is equally bad.
- Judicial review concerns the decision-making process, not the merits of the decision itself.
- The setting aside of a judgment after the event does not legalise acts done in disobedience of that judgment and prior subsisting orders.
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 the said title by cancelling, expunging and removing all entries relating to the interested parties' ownership of L.R No. 209/20737
- 3.The applicant to 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 sections 8 and 11 of the Fair Administrative Action Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & 2 others Ex parte Sayani Investment Limited; Sadhani Limited & another (Interested Parties) [2021] KEELC 4454 (KLR)", Case Analysis (2021). Judicial Review Application (Notice of Motion dated 19th September 2017), arising from Nairobi High Court JR proceedings (related: HC. JR No. 313 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4454/eng@2021-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.