Republic v County Government of Nandi, Land Registrar Nandi County & another Ex parte Dhirajlal Zaverch & another [2022] KEELC 1456 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Legality of the 2nd Respondent's expungement of the Certificate of Lease
The 2nd Respondent acted illegally in expunging the records and confiscating the original Certificate of Lease, as such powers rest only with the Court
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.
Availability of Mandamus without certiorari
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
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.
Joinder of the 1st Respondent
The 1st Respondent (Nandi County Government) was erroneously joined as it took no part in the expungement or retention of the documents
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.
Legal principles established
#- 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
#- 1.The Judicial Review against the 1st Respondent is dismissed
- 2.The Notice of Motion application dated 30th May 2018 is dismissed with costs to the 1st Respondent
- Jurisdiction invoked
- Judicial review jurisdiction (orders of Mandamus) pursuant to leave granted by the Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.