Republic v Land Registrar, Machakos & another; Raphael F. K. Kilonzo (Interested Party) Ex parte Fredrick Nzyoki Makau & another [2021] KEELC 4533 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Land Registrar was obliged to give the Applicants a hearing before sub-dividing the suit property
No. The Registrar was merely implementing a court order and was only required to verify its genuineness.
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.
Whether execution of the 1987 order in 2009 was time barred
Yes. Execution after 22 years contravened Section 4(4) of the Limitation of Actions Act, rendering the decision illegal.
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.
Whether the court can compel revocation of the title issued to the Interested Party
Yes, through Mandamus; the register may also be rectified under Section 143 of the Registered Land Act where registration resulted from mistake.
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 Sections 142(1) and 143 of the Registered Land Act (repealed) empower the court to compel the Registrar to act and to order rectification where a registration was made by fraud or mistake.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.
Legal principles established
#- 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
#- 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.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.Each party to bear his own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.