Republic v Land Registrar, Rachuonyo South/North Sub-Counties & 3 others Ex Parte Japheth Ogolo Oyoo [2022] KEELC 1150 (KLR)
The bottom line
#A Kenyan court has confirmed that land registrars cannot revoke your title or restrict your land without giving you notice and a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Registrar's impugned decision was reasonable, procedurally fair and lawful
The decision was unreasonable, procedurally unfair and unlawful; the procedure followed was not shown, no adequate notice was issued, and it offended Articles 47(1) and 50(1) and the res judicata principle.
The court applied Article 47(1) as operationalised by sections 5, 6, 7, 9, 10 and 11 of the Fair Administrative Actions Act, 2015, and Article 50(1). It found no evidence of the procedure followed in reaching the impugned decision, no adequate notice to the applicant, and that the dispute had already been determined on merits in Oyugis PMCC No. 35 of 2012 and Kisii ELC Nos. 94 of 2014 and 379 of 2016, offending section 7 of the Civil Procedure Act on res judicata. The audi alteram partem rule was violated, as illustrated in Re Hebtullah Properties Limited.
Whether the ex-parte applicant is entitled to the judicial review orders sought
Yes. Having found the decision unreasonable, procedurally unfair and unlawful, the applicant was entitled to certiorari, mandamus and prohibition, and the application was allowed in terms of prayers (a) to (g).
The court held that judicial review is an appropriate relief under Article 23(3)(f) of the Constitution. The Registrar had jurisdiction under section 79 of the Land Registration Act but had to comply with fair-hearing requirements. Since the contested issues had been determined by courts of competent jurisdiction and the Registrar acted without adequate notice and contrary to those determinations, the decision could not stand. The 1st and 2nd respondents filed no response or submissions, and the interested parties' opposition, founded on alleged fraud in obtaining letters of administration, did not displace the unfairness of the administrative process.
Legal principles established
#- Where a dispute over land has already been determined by courts of competent jurisdiction, the Land Registrar's decision nullifying title without adequate notice, and without showing the procedure followed, is unreasonable, procedurally unfair and unlawful.
- An administrative decision affecting a person's title to land must be reached with adequate notice and reasons, in accordance with Article 47 and the audi alteram partem rule.
Court orders
#- 1.Order of certiorari quashing the 1st respondent's decision vide letter Ref. No. RACH/LND/ADMIN/8/VOL.IV/234 dated 7th July 2020 revoking the applicant's titles over LR Nos. KABONDO/KASEWE/1711 and 1712 without fair hearing
- 2.Order of certiorari quashing the 1st respondent's decision in the same letter rectifying the register in respect of LR No. KABONDO/KASEWE/937 and restoring it to the name of Oyoo Ondiek (deceased) without regard to the Fair Administrative Actions Act, 2015 and section 79 of the Land Registration Act
- 3.Order of certiorari quashing the 1st respondent's decision cancelling the applicant's name from the register/green card in respect of LR No. KABONDO/KASEWE/937 contrary to res judicata and the decisions in Oyugis PMCC No. 35 of 2012 and Kisii ELC Nos. 94 of 2014 and 379 of 2016
- 4.Order of certiorari quashing the restriction entered against the title in respect of LR No. KABONDO/KASEWE/937
- 5.Order of mandamus compelling the 1st respondent to restore and reinstate the registers and titles in respect of LR Nos. KABONDO/KASEWE/1711 and 1712 in the name of the ex-parte applicant
- 6.Order of prohibition prohibiting the respondents, particularly the 1st respondent, from revoking, interfering with or altering the registers and titles in respect of LR Nos. KABONDO/KASEWE/1711 and 1712 without due process of the law, the Constitution, 2010, the Fair Administrative Actions Act, 2015 and the doctrine of natural justice
- 7.The application dated 20th January 2021 was allowed in its entirety as sought
- Jurisdiction invoked
- Article 23(3)(f) of the Constitution of Kenya, 2010 and the Law Reform Act / Fair Administrative Actions Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Land Registrar, Rachuonyo South/North Sub-Counties & 3 others Ex Parte Japheth Ogolo Oyoo [2022] KEELC 1150 (KLR)", Case Analysis (2022). Not stated in the judgment (Judicial Review Notice of Motion dated 20th January 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1150/eng@2022-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.