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ELCAllowedJudicial Review Application No. E009 of 2020· [2022] KEELC 855 (KLR)

Republic v Registrar of Titles, Nairobi Ex parte Ruth Mayoyo & 2 others; New Karen Ventures Limited (Interested Party) [2022] KEELC 855 (KLR)

Environment and Land Court
10 March 2022
4,617 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court quashed the Registrar of Titles' reconstruction of a land register because affected owners were never heard before the decision was made.

What this practically means

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Executive summary

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This was a judicial review motion under Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, in which three Ex parte Applicants (Ruth Mayoyo, Ben Omenge and Tom Nyaboga) challenged the Respondent Registrar of Titles' reconstruction of the land register for L.R. No. 6967 (orig. No. 5830/1/2) pursuant to Gazette Notice No. 3670 dated 22nd May 2020, on the application of the Interested Party, New Karen Ventures Limited. The Applicants, who claimed to own subdivisions of the original parcel, contended that the reconstruction proceeded without hearing their objections, that the Respondent refused service of their letters, that the register was reconstructed before expiry of the 60-day notice period, and that the process breached Section 33 of the Land Registration Act, Rule 28 of the Land Registration (General) Regulations, 2017 and the rules of natural justice. The Respondent conceded reconstruction on 22nd July 2020; the Interested Party argued no decision had been made and the application was premature. The court held that judicial review concerns the decision-making process, and that the Respondent had made a decision to reconstruct without hearing the lodged objections, having refused service and failed to demonstrate full compliance with the statutory procedure. The court found the Applicants made out a case and granted certiorari quashing the reconstruction decisions and any interference with the Applicants' subdivision registers, prohibition against further reconstruction before determination of the objections, and mandamus compelling the Registrar to hear and determine the 10th August 2020 objection. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Respondent's reconstruction of the land register was procedurally flawed

Holding

The reconstruction was unlawful because the Respondent failed to hear the Ex parte Applicants' objections and did not demonstrate compliance with Section 33 of the Land Registration Act, 2012 and Rule 28 of the Land Registration (General) Regulations, 2017.

Reasoning

The Registrar gazetted a 60-day notice of intention to reconstruct the register. The Ex parte Applicants lodged a letter and objection, but the Respondent refused to accept service and reconstructed the register on 22nd July 2020 without hearing the objections. The allegations of frustrated service were uncontroverted, and the Applicants' letter was never answered. The court found the process tainted with illegality, irrationality and procedural impropriety.

p. 6
02

Whether the Respondent was obliged to communicate its decision to the objectors

Holding

Although Section 33 does not require notification, fairness under Article 47 of the Constitution required the Respondent to inform the Ex parte Applicants of its decision and reasons.

Reasoning

The court held that while the statute does not expressly direct the Registrar to inform objectors of the outcome, fair administrative action under Article 47 demanded that the Applicants, whose objections had been lodged, be informed that reconstruction had already occurred rather than leaving them unaware when they filed the substantive motion.

p. 6
03

Scope of judicial review remedies (certiorari, prohibition, mandamus) in this context

Holding

Certiorari lies to quash a decision made without jurisdiction or in breach of natural justice; prohibition and mandamus issue against public bodies to restrain unlawful continuance of proceedings and compel performance of public duties respectively.

Reasoning

Adopting the KNEC v Republic Ex parte Gathenji principles, the court confirmed that judicial review concerns the decision-making process, and that these remedies are available against public bodies, including for departure from the rules of natural justice. Certiorari was appropriate to quash the reconstruction decision; prohibition and mandamus were appropriate to restrain further reconstruction and compel the hearing of the objections.

p. 6

Legal principles established

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  • The rules of natural justice make it mandatory for a party to be heard before any decision that is likely to affect their rights is made.

Court orders

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  1. 1.An order of certiorari removing into the court and quashing any decision and/or order of the Respondent reconstructing the land register for L.R. No. 6967 (orig. No. 5830/1/2) pursuant to Gazette Notice No. 3670 dated 22nd May 2020
  2. 2.An order of certiorari quashing any decision and/or order of the Respondent that interfered with the registers of the Applicants' parcels L.R. Nos. 6967/3, 6867/5 and 6967/6
  3. 3.An order of prohibition restraining the Respondent, his/her agents, officers, employees or any person acting under the Respondent's instructions from carrying out the proposed reconstruction of the land register for L.R. No. 6967 (orig. No. 5830/1/2) pursuant to Gazette Notice No. 3670 dated 22nd May 2020 before hearing and determining the Ex parte Applicants' objection dated August 2020
  4. 4.An order of mandamus compelling the Registrar of Titles, Nairobi County to hear and determine the Ex parte Applicants' objection dated 10th August 2020
  5. 5.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 40, 47, 50
  • Law Reform ActSections 8 and 9
  • Land Registration Act, 2012Section 33(5)
  • Land Registration (General) Regulations, 2017Rule 28
  • Civil Procedure Rules, 2010Order 53, Rule 3

Cases cited (9)

  • Patoli v Kabole District Local Government Canal & Others
    [2008] 2 EA 300
  • Independent Electoral and Boundaries Commission (IEBC) & 2 Others
    [2015]
  • Super Nova Properties Limited v The National Land Commission
    [2019] eKLR
  • Council for Civil Service Unions v Minister for Civil Service
    [1985] AC 274 at 401D
  • Kenya National Examination Council v Republic Ex-parte Geoffrey Githinji Njoroge & 9 others
    [1997] eKLR
  • Market Plaza Ltd vs Commissioner of Lands & 3 others
    [2019] eKLR
  • Republic vs Kenya Revenue Authority Ex parte Yaya Towers Ltd
    [2008] eKLR
  • Ransa Company Limited vs Manca Francesco & 2 Others
    [2015] eKLR
  • KNEC vs Republic Ex parte Geoffrey Gathenji & 9 Others
    [1997] eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap 26), Order 53 of the Civil Procedure Rules, 2010, and Articles 27, 40, 47 and 50 of the Constitution of Kenya, 2010

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 Registrar of Titles, Nairobi Ex parte Ruth Mayoyo & 2 others; New Karen Ventures Limited (Interested Party) [2022] KEELC 855 (KLR)", Case Analysis (2022). Judicial Review Application No. E009 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/855/eng@2022-03-10

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