Mombasa Technical Training Institute v Commissioner of Lands; Municipal Council of Mombasa (Interested Party) [2022] KEELC 743 (KLR)
The bottom line
#A Mombasa court cancelled a county council's title to public land and ordered it issued to a national polytechnic instead.
What this practically means
#Executive summary
#Key legal issues
#Availability of the prerogative orders of Certiorari, Mandamus and Prohibition
The court confirmed judicial review is founded on Order 53 Rules 1-7 of the Civil Procedure Rules 2010, Sections 8 and 9 of the Law Reform Act Cap 26, Article 47 of the Constitution and the Fair Administrative Action Act 2012, and that these orders lie only against public bodies.
The court traced the legal foundation of judicial review from the Law Reform Act through Order 53 of the Civil Procedure Rules to Article 47 and the Fair Administrative Action Act 2012. It explained each prerogative order: Certiorari quashes decisions of inferior bodies; Prohibition bars encroachment into jurisdiction; Mandamus compels performance of a public or statutory duty where the officer or body has been lethargic.
Entitlement to Mandamus compelling issuance of title
The Respondent, having reserved the suit plots to the Ex-Parte Applicant by the letter of 23rd May 1991 and confirmed by the Ministry of Education, was under a public duty to issue title; failure was unlawful, capricious and unfair.
The court found it undisputed that the Commissioner of Lands reserved and the Applicant occupied Plots 105, 108 and 109, and that a consent before Justice Hayanga on 5th June 2001 recorded that title be issued to the Applicant. Despite the stay order of 31st March 1999, the Interested Party obtained a title on 24th September 2015, which the court held unlawful and in defiance of court orders, justifying Mandamus.
Devolution of educational functions and the Interested Party's claim
Under Article 186(1) and the Fourth Schedule of the Constitution, national polytechnics are a national government function; the county government's mandate is limited to vocational training centres and ECD, so it had no basis to be registered over the suit land.
The court concurred with submissions of both the Applicant and Respondent that county governments deal only with Early Childhood Education under the Fourth Schedule, while tertiary institutions of higher learning such as the Applicant are reserved to the national government. The Interested Party therefore lacked any lawful foundation for the title issued to it.
Estoppel and root of title
Multiple government departments confirmed the property belonged to the Ex-Parte Applicant, engaging estoppel; conversely, the Interested Party was obliged to prove the root of its title.
Relying on the principle in Munyu Maina v Hiram Gathiha Maina that a holder whose title integrity is questioned must prove its root, and given the 1991 reservation letter, the 2001 consent and the Ministry of Education letter of 19th April 2001, the court found the Interested Party's 2015 title was issued unlawfully and in collusion with the Respondent, and directed its cancellation under Section 80 of the Land Registration Act.
Costs
Under Section 27(1) of the Civil Procedure Act, costs follow the event; the Applicant succeeded against the Interested Party.
The court applied the Black Law Dictionary definition of costs and Section 27(1) of the Civil Procedure Act, which confers discretion on costs and provides that costs follow events. Since the Ex-Parte Applicant was successful against the Interested Party, costs were awarded to the Applicant, borne by the Interested Party.
Legal principles established
#- A letter of reservation followed by consistent confirmation from government departments that land belongs to an applicant founds entitlement to title, and the doctrine of estoppel prevents the State from reneging on such reservation.
- Obtaining title over land while a stay/sub judice order is pending is unlawful, capricious and unfair and may amount to contempt of court.
- Consolidation of the plots and registration of the Interested Party was irregular, unprocedural and illegal.
Court orders
#- 1.The Land Registrar, Mombasa Land Registry directed, under Section 80(1) and (2) of the Land Registration Act No. 3 of 2012, to cancel the Certificate of Title for L.R. Mombasa/Block XVII/1717 (arising from consolidation of Plots No. 106, 1003, 108 and 1469) registered in the Interested Party's name within 30 days
- 2.Order of Mandamus compelling the Respondent to issue the Ex-Parte Applicant a Certificate of Title for Plots No. 105, 108 and 109 Section XVII, M.I and Plot No. L.R 2932 at Shanzu in the name of Kenya Coast National Polytechnic
- 3.Judicial review order of Prohibition restraining the Respondent from allocating all or part of Plot No. 105, 108 & 109 Section XVII, M.I and L.R 2932 to the Interested Party or any third party
- 4.Judicial review order of Certiorari quashing the decision of the Respondent to sub-divide and allocate part of Plots No. 105, 108 & 109 Section XVII, M.I and L.R No. 2932 to the Interested Party or any third party
- 5.Judicial review order of Mandamus compelling the Interested Party to approve the past development plans of the suit premises in favour of the Ex-Parte Applicant within 30 days
- 6.Judicial review order of Certiorari quashing any title document issued by the Respondent to the Interested Party or any third party, declared a nullity
- 7.Costs of the suit awarded to the Ex-Parte Applicant, borne by the Interested Party
- Jurisdiction invoked
- Order 53 of the Civil Procedure Rules, 2010 and the Fair Administrative Action Act, 2012 (judicial review in the first instance)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mombasa Technical Training Institute v Commissioner of Lands; Municipal Council of Mombasa (Interested Party) [2022] KEELC 743 (KLR)", Case Analysis (2022). Civil Suit No. 253 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/743/eng@2022-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.