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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 1810 (KLR)

Anna Jebichi Simatwo v Attorney General & 2 others [2022] KEELC 1810 (KLR)

Environment and Land Court
31 January 2022
MOM.A. Odeny
1,618 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Land Registrar cannot cancel your land title without giving you notice or a court order, and doing so entitles you to get it back plus compensation.

What this practically means

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Executive summary

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The Plaintiff, registered owner of land parcel No. SOY/KIPSOMBA BLOCK 8 (KOECH & PARTNERS)33 since September 2002, sued the Defendants seeking a declaration that the 2nd Defendant Land Registrar of Eldoret's cancellation of her title deed on 3rd June 2013 was unlawful, an order for rectification of the register and restoration of her name, and costs. She testified that her title and supporting documents were stolen in a house break-in, that she reported the theft to the police and the Land Registrar, and that she discovered the cancellation had been effected without notice or a court order. The defence closed without calling any evidence. The court held the matter undefended and indefensible, finding no complainant or court order sanctioned the cancellation. Relying on Section 79 of the Land Registration Act and the authorities of Lawrence Muriithi Mbabu and Mary Ruguru Njoroge, the court held that a Registrar cannot cancel a title materially affecting a proprietor's interest without 90 days' written notice or consent, making the cancellation illegal. Judgment was entered for the Plaintiff: the register was ordered rectified and the Plaintiff restored as registered proprietor; general damages of Kshs. 500,000 were awarded (less than the Kshs. 1 million sought in submissions); and the Defendants were ordered to pay costs of the suit. Judgment delivered at Malindi on 31st January 2022 by M.A. Odeny J.

Key legal issues

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01

Lawfulness of administrative cancellation of title

Holding

The unilateral cancellation of the Plaintiff's title without notice or court order was unlawful and invalid

Reasoning

Section 79 of the Land Registration Act permits rectification only in defined circumstances and, where it materially affects a proprietor's title, requires 90 days' written notice or consent. No complainant or court order justified the cancellation here, and the Plaintiff was never heard.

p. 2
02

Standard of proof and entitlement to rectification

Holding

The Plaintiff proved her case on a balance of probabilities and was entitled to rectification and reinstatement in the register

Reasoning

The evidence was uncontroverted as the defence declined to call any witness. The Plaintiff produced the Green Card, consent, mutation form, search, and police abstract demonstrating regular registration and transfer processes and the loss of her documents to theft.

p. 3

Legal principles established

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  • A Land Registrar has no power to cancel a registered proprietor's title without notice to the proprietor or a court order; such cancellation materially affecting proprietary interests is unlawful

Court orders

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  1. 1.Rectification of the register and restoration of the Plaintiff as owner and registered proprietor of Land Parcel No. SOY/KIPSOMBA BLOCK 8 (KOECH & PARTNERS)33
  2. 2.General damages of Kshs. 500,000 to the Plaintiff
  3. 3.Defendants to pay costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 79
  • Land Registration ActSection 80(1)
  • Civil Procedure RulesOrder 21 [1]

Cases cited (4)

  • Republic v Chief Land Registrar & another Ex-parte Yosabia Kerubo Manyura
    [2018] eKLR
  • Shimoni Resort v Registrar of Titles & 5 others
    [2016] eKLR
  • Lawrence Muriithi Mbabu v District Land Registrar, Nyeri & another; John Githui Kinyua (Interested Party)
    [2019] eKLR
  • Mary Ruguru Njoroge –Vs- John Samuel Gathuma Mbugu
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction over a land claim brought by plaint; rectification of register under the Land Registration Act (Sections 79 and 80)

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, "Anna Jebichi Simatwo v Attorney General & 2 others [2022] KEELC 1810 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1810/eng@2022-01-31

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