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ELCPartially AllowedJudicial Review (Notice of Motion dated 26th October, 2010)· [2021] KEELC 4533 (KLR)

Republic v Land Registrar, Machakos & another; Raphael F. K. Kilonzo (Interested Party) Ex parte Fredrick Nzyoki Makau & another [2021] KEELC 4533 (KLR)

High Court of Kenya (Judicial Review Division, Machakos)
29 January 2021
2,304 words in judgment
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The bottom line

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Kenya's High Court cancelled a land title created when the Land Registrar executed a 1987 court order 22 years too late, breaching the twelve-year limitation rule.

What this practically means

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Executive summary

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The Ex parte Applicants, administrators of the Estate of the late Samuel Makau Mwilu, sought judicial review orders of Prohibition and Mandamus against the Land Registrar, Machakos, following the sub-division of Machakos/Mua Hills/173 into parcels 335 and 336 and the registration of parcel 336 in favour of the Interested Party, Raphael F.K. Kilonzo. The Applicants argued the Registrar acted ultra vires and without hearing them or the beneficiaries, and that any decree relied upon was time barred under Section 4(4) of the Limitation of Actions Act. The 1st Respondent maintained that the sub-division and registration merely implemented a High Court order of 23rd December, 1987 in Nairobi HCCC No. 722 of 1981, which directed the excision of 12 acres and registration in favour of the Interested Party. The court held that a registrar executing a genuine court order need not hold inquiries or hear affected parties; any challenge to the order's validity should have been directed at setting it aside. However, the court found fatal the 22-year delay between the 1987 order and its execution in 2009, holding that Section 4(4) bars actions upon a judgment after twelve years, rendering the Registrar's decision illegal. Relying on Sections 142(1) and 143 of the Registered Land Act (repealed), the court allowed the motion, issuing Prohibition against further dealings with the suit parcel and Mandamus to revoke the Interested Party's title. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Land Registrar was obliged to give the Applicants a hearing before sub-dividing the suit property

Holding

No. The Registrar was merely implementing a court order and was only required to verify its genuineness.

Reasoning

The Registrar acted under a High Court order in Nairobi HCCC No. 722 of 1981 directing sub-division and registration. Any grievance about that order's validity or a lack of hearing in it had to be raised by setting aside that order, not by attacking the Registrar's implementation. Judicial review focuses on the decision-making process, and no process was exercised beyond executing the order.

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02

Whether execution of the 1987 order in 2009 was time barred

Holding

Yes. Execution after 22 years contravened Section 4(4) of the Limitation of Actions Act, rendering the decision illegal.

Reasoning

Section 4(4) bars actions upon a judgment after twelve years. The order was dated 16th November 1987 and the sub-division effected on 27th January 2009, a lapse of 22 years. The Registrar's admission of both dates made the illegality plain, justifying judicial review on the ground of illegality and relief by way of prohibition and mandamus.

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03

Whether the court can compel revocation of the title issued to the Interested Party

Holding

Yes, through Mandamus; the register may also be rectified under Section 143 of the Registered Land Act where registration resulted from mistake.

Reasoning

Having found the sub-division and registration illegal, the court invoked its judicial review jurisdiction. Sections 142(1) and 143 of the Registered Land Act (repealed) empower the court to compel the Registrar to act and to order rectification where a registration was made by fraud or mistake. The title procured under an illegally executed order was accordingly ordered revoked.

p. 3

Legal principles established

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  • An action upon a judgment may not be brought after twelve years from the date of the judgment
  • A registrar executing a genuine court order need not hold an inquiry or hear affected parties before implementing it
  • Execution of a court order more than 12 years after its issue is contrary to Section 4(4) of the Limitation of Actions Act and therefore illegal

Court orders

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  1. 1.An order of Prohibition directed to the 1st Respondent, its servants and/or agents or others whomsoever from carrying out any further sub-division, replanning, validating or howsoever dealing with parcel No. Machakos/Mua Hills/173 or any other parcels excised therefrom
  2. 2.An order of Mandamus directed to the 1st Respondent to revoke any Title Deed issued to the Interested Party in respect of any parcel created by the sub-division of Land Parcel Number Machakos/Mua Hills/173
  3. 3.Each party to bear his own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 4(4)
  • Registered Land Act (repealed)Section 142(1)
  • Registered Land Act (repealed)Section 143
Jurisdiction invoked
Judicial review of administrative action under the common law principles of illegality; Registered Land Act (repealed), ss 142(1) and 143; Limitation of Actions Act, s 4(4)

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 Land Registrar, Machakos & another; Raphael F. K. Kilonzo (Interested Party) Ex parte Fredrick Nzyoki Makau & another [2021] KEELC 4533 (KLR)", Case Analysis (2021). Judicial Review (Notice of Motion dated 26th October, 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4533/eng@2021-01-29

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