Republic v Naivasha District Land Registrar & 2 others Ex parte Grace Wanjiru Nganga & 2 others [2022] KEELC 1084 (KLR)
The bottom line
#Kenyan courts ruled land registrars cannot cancel title deeds without notice and a hearing, restoring cancelled Naivasha land titles to their owners.
What this practically means
#Executive summary
#Key legal issues
#Whether notice and hearing were given before cancellation of titles and map entries
The ex parte applicants were neither notified nor heard; the respondents did not dispute this, so the factual position stands and the actions violated Article 47 and natural justice
Article 47(1) and (2) guarantees fair administrative action and written reasons where rights are adversely affected. Section 79(2) of the Land Registration Act requires 90 days' written notice before an alteration affecting title. The applicants stated they were not notified or heard, and the respondents, having filed no replying affidavit, did not contest that assertion. Acting in good faith is no substitute for compliance with the rule of law.
Whether the respondents had jurisdiction to nullify and cancel the titles and map entries
The first respondent acted without jurisdiction in nullifying the titles, and the second respondent's deletion of the parcels from the registry index map was a nullity founded on another nullity
Settled law is that a land registrar has no power to cancel a title, which only a competent court may do. Section 79 of the Land Registration Act permits rectification only in specified cases, with consent of all affected parties or notice; none was shown. The second respondent's action, resting on the first respondent's invalid decision, was itself void on the principle in Macfoy v United Africa Co Ltd.
Whether certiorari, mandamus and prohibition should issue
Certiorari and mandamus issued to revert the status quo ante; prohibition refused as it would blanketly inhibit the registrar's statutory mandate
Certiorari issues where a decision is made without or in excess of jurisdiction or in breach of natural justice; mandamus compels performance of a public duty. Both were available here because the respondents acted without jurisdiction. Prohibition, however, is prospective and requires a showing of intended future excess of jurisdiction, which was absent.
Legal principles established
#- A land registrar has no power to cancel a title; cancellation can only be done by a competent court of law.
- Before any administrative action adversely affecting rights and interests, the affected person must be notified and given an opportunity to be heard (Article 47).
- Good faith does not excuse non-compliance with the rule of law; actions founded on a nullity are themselves nullities.
Court orders
#- 1.An order of certiorari removing to the court and quashing the decision of the first respondent contained in a letter dated March 2019 nullifying and cancelling title deeds for land parcel numbers Gilgil/Gilgil Block 1/9563 to 9570 (Kekopey) and reinstating their parent title parcel number Gilgil/Gilgil Block 1/7413 (Kekopey)
- 2.An order of certiorari quashing the decisions of the second respondent dated 21st March 2019 and 7th May 2019 cancelling land parcel numbers Gilgil/Gilgil Block 1/9563 to 9570 (Kekopey) from registry index map number 14 and 15 Gilgil/Gilgil Block 1 (Kekopey)
- 3.An order of mandamus directing the first respondent to remove entries numbers 4 and 5 in the register of land reference number Gilgil/Gilgil Block 1/7413 (Kekopey) and mark the register as closed upon subdivision
- 4.An order of mandamus compelling the second respondent to remove the mutation entry reference number MUT/NVS/9877/5/19 from registry index map number 14 and 15 and restore land parcel numbers Gilgil/Gilgil block 1/9563 to 9570 (Kekopey) in the aforesaid map
- 5.No order as to costs
- Jurisdiction invoked
- Judicial review jurisdiction under the Fair Administrative Action Act, 2015 and Article 47 of the Constitution (order of certiorari, mandamus and prohibition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Naivasha District Land Registrar & 2 others Ex parte Grace Wanjiru Nganga & 2 others [2022] KEELC 1084 (KLR)", Case Analysis (2022). Judicial Review Application No. E004 of 2021 (ex-parte applicants; Notice of Motion dated 4th April 2021, chamber summons dated 16th March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1084/eng@2022-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.