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ELCDismissedJudicial Review Application (Notice of Motion dated 3rd May 2018)· [2022] KEELC 1456 (KLR)

Republic v County Government of Nandi, Land Registrar Nandi County & another Ex parte Dhirajlal Zaverch & another [2022] KEELC 1456 (KLR)

Environment and Land Court
17 February 2022
2,014 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Land Registrar had no power to cancel the applicants' lease, but the court dismissed their case anyway because they sought the wrong judicial review remedy.

What this practically means

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Executive summary

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The ex-parte applicants, registered proprietors of Nandi/Kapsabet Municipality/85, obtained leave to seek an order of Mandamus compelling the respondents to release their original Certificate of Lease and Discharge of Charge, which they had deposited at the lands office on 30th August 2012 for stamp duty assessment and which were thereafter retained after their file was purportedly expunged from the records. The 1st Respondent (Nandi County Government) denied custody of the documents and claimed it was wrongly sued. The 2nd and 3rd Respondents' Replying Affidavit was never placed on the Court file; through submissions they asserted the property was now registered in the name of a third party and that judicial review was unsuitable where a factual dispute over ownership existed. The Court found that the Registrar had no statutory power under Section 79 of the Land Registration Act to expunge records or confiscate the certificate, such powers being reserved to the courts. However, because the applicants sought only Mandamus and had not sought certiorari to quash the expungement decision, any order compelling release would issue in vain and serve only an academic purpose, the Court exercising its discretion against granting futile judicial review orders. The 1st Respondent was found erroneously joined. The Notice of Motion was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Legality of the 2nd Respondent's expungement of the Certificate of Lease

Holding

The 2nd Respondent acted illegally in expunging the records and confiscating the original Certificate of Lease, as such powers rest only with the Court

Reasoning

The applicants argued, and the Court accepted, that under the Registered Land Act (Sections 143 and 159) and the Land Registration Act (Sections 79 and 80), powers of cancellation and expungement of registered titles are reserved to the Court. The Registrar therefore had no statutory power to expunge the records or retain the certificate; any dispute over ownership should have been pursued by way of a civil suit.

p. 3
02

Availability of Mandamus without certiorari

Holding

Mandamus could not usefully issue because the underlying decision to expunge was not challenged by certiorari; the release of an expunged certificate would issue in vain

Reasoning

The Court held that the substantive motion sought only Mandamus. Since the expungement decision had not been quashed, ordering release of the original certificate would not restore the applicants' title and would serve only an academic purpose. Judicial review relief being discretionary, the Court withholds orders that are overtaken by events or of no practical significance.

p. 3
03

Joinder of the 1st Respondent

Holding

The 1st Respondent (Nandi County Government) was erroneously joined as it took no part in the expungement or retention of the documents

Reasoning

The 1st Respondent deponed through its Chief Officer that it neither held custody of the original title documents nor participated in the acts complained of. The Court accepted that the 1st Respondent did not participate in any of the complained-of activities and dismissed the Judicial Review as against it.

p. 3

Legal principles established

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  • The power to cancel or expunge a registered title rests with the Court and not the Registrar
  • A decision to expunge records can only be challenged by way of an order of certiorari, not mandamus
  • Judicial review orders are discretionary and will not issue where they would be academic or serve no practical significance

Court orders

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  1. 1.The Judicial Review against the 1st Respondent is dismissed
  2. 2.The Notice of Motion application dated 30th May 2018 is dismissed with costs to the 1st Respondent

Authorities

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Legislation

  • Registered Land ActSections 143 and 159
  • Land Registration ActSection 79
  • Land Registration ActSection 80

Cases cited (6)

  • Republic vs Commissioner of Lands and 2 others Exparte Kennedy Bosire Gichana
    (2015) eKLR
  • Fahim Yasin Twalia and Another vs District Land Registrar Lamu
    Malindi J.R. Misc. Application No. 17 of 2018
  • Sangani Investment Limited vs Officer in Charge Nairobi Remand and Allocation Prison
  • Seventh Day Adventist Church East Africa Limited vs Permanent Secretary, Ministry of Nairobi Metropolitan Development and Another
  • National Examinations Council vs Republic Exparte Geoffrey Gathenji Njoroge
  • Joccinta Wanjiru Raphael vs Wiliam Nangulu, Divisional Criminal Investigation Officer Makadara and 2 others
    (214) eKLR
Jurisdiction invoked
Judicial review jurisdiction (orders of Mandamus) pursuant to leave granted by the Court

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 County Government of Nandi, Land Registrar Nandi County & another Ex parte Dhirajlal Zaverch & another [2022] KEELC 1456 (KLR)", Case Analysis (2022). Judicial Review Application (Notice of Motion dated 3rd May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1456/eng@2022-02-17

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