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ELCPartially AllowedJudicial Review Application Number 6 of 2021· [2022] KEELC 1981 (KLR)

Republic v Land Registrar Siaya District & another Ex parte Juma Nyateko & 2 others; Maurice Onyango Okech (Interested Party) [2022] KEELC 1981 (KLR)

Environment and Land Court
20 January 2022
2,607 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that land registrars cannot cancel your title deed by gazette notice—only a court can revoke a title, and only after a fair hearing.

What this practically means

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Executive summary

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The three ex parte applicants moved the Environment and Land Court at Siaya by a notice of motion dated 30/12/2020 seeking certiorari to quash, prohibition against, and mandamus compelling restoration following the Land Registrar Siaya District's decision published in Kenya Gazette No.7482 of 25/09/2020 cancelling their title deeds over land parcels SIAYA/NYAJUOK/2686, 2634, 2481, 2685 and 2388. They argued the cancellation was ultra vires, infringed Articles 40, 47, 48 and 50(1) of the Constitution and Sections 24, 25, 26, 79 and 80 of the Land Registration Act, and breached natural justice as no hearing was afforded. The respondents entered appearance but filed no responses or submissions. The interested party, a beneficiary of the estate of an original co-owner of SIAYA/NYAJUOK/153, justified the cancellation as an exercise of the Registrar's powers under Sections 14 and 79 following complaints of fraudulent partition and transfer. The court held that a Land Registrar lacks jurisdiction to cancel titles by gazette notice; rectification for fraud or mistake under Section 80 is reserved to the court. It found no evidence of a fair hearing, breaching Article 47 and the Fair Administrative Action Act, and held the decision irrational for applying facts to non-existent legal provisions. The court declined to determine ownership, directing the parties to ordinary civil suits. The application was allowed: certiorari quashed the gazette decision, mandamus ordered restoration of the titles, and costs were awarded to the ex parte applicants.

Key legal issues

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01

Legality of the Land Registrar's cancellation of titles by gazette notice

Holding

The grounds relied on were not envisaged under Section 79 of the Land Registration Act; only the court may order rectification for fraud under Section 80

Reasoning

The court construed Sections 79 and 80 of the Land Registration Act and held that the Registrar exceeded his statutory powers by purporting to revoke titles through a gazette notice. Rectification of the register on grounds of fraud or mistake is reserved to the court under Section 80, and the Registrar acted on non-existent legal provisions.

p. 3
02

Procedural impropriety - breach of natural justice and fair administrative action

Holding

The cancellation was procedurally improper as there was no evidence the applicants were accorded a fair hearing

Reasoning

Relying on Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act, the court found no evidence that the applicants were issued a notice of the complaint, accorded a hearing, or given reasons before the far-reaching decision cancelling their titles. The respondents' failure to participate deprived the court of material to show fairness.

p. 3
03

Irrationality of the Registrar's decision

Holding

Even if the facts were overwhelming against the applicants, the Registrar acted unreasonably by applying facts to non-existent provisions of law

Reasoning

Applying the rationality test in Section 7(2)(i) of the Fair Administrative Action Act, the court found that although the partition history of SIAYA/NYAJUOK/153 appeared questionable, the decision lacked a rational legal basis because the Registrar applied the facts to provisions of law that do not exist.

p. 4
04

Limits of judicial review on ownership disputes

Holding

The court declined to determine ownership, leaving the parties to ventilate the merits in ordinary civil suits

Reasoning

The court held that judicial review concerns process, not private rights or merits, and it would act outside the purview of judicial review by determining ownership of the disputed parcels; the parties may pursue ordinary civil suits on whether the titles were genuinely obtained.

p. 4

Legal principles established

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  • A Land Registrar has no power to cancel title to land by gazette notice; rectification involving fraud or mistake is a matter for the court under Section 80 of the Land Registration Act
  • Cancellation of title without affording the proprietors a hearing violates Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act
  • Judicial review is concerned with the decision-making process, not the merits of ownership, which must be litigated in ordinary civil suits

Court orders

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  1. 1.An order of certiorari removing to the Court and quashing the 1st Respondent's decision Gazetted on 25/09/2020 cancelling the ex parte applicants' title deeds numbers Siaya/Nyajuok/2686, 2634, 2481, Siaya/Nyajuok/2685 and Siaya/Nyajuok/2388
  2. 2.An order of mandamus compelling the 1st respondent to restore the cancelled title deeds of parcels SIAYA/NYAJUOK/2686, 2634 and 2481; SIAYA/NYAJUOK/2685 and SIAYA/NYAJUOK/2388
  3. 3.Costs awarded to the ex parte applicants

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 20, 23, 40, 40(3), 47, 48 and 50(1)
  • Land Registration Act 2012Sections 14, 24, 25, 26, 79 and 80
  • Fair Administrative Action ActSections 4, 7, 7(2)(i), 9 and 11
  • Law Reform ActSections 8 and 9
  • Civil Procedure ActSections 3(a), 3A and 5
  • Civil Procedure RulesOrder 53 Rules 3(1), 3(3) and 4(1)
  • Environment and Land Court ActSection 13(7)(b)

Cases cited (13)

  • Meixeur & another v Attorney General
    [2005] 2 KLR 189
  • Municipal Council of Mombasa vs Republic and Umoja Consultants Ltd
    Nairobi Civil Appeal No.185 of 2007 (2002) eKLR
  • Republic versus Commissioner of lands and the Registrar of titles ex parte Emrose Academy
    JR Miscellaneous Application number 87 of 2011
  • Republic v Public Procurement Administrative Review Board & 2 others Exparte Rongo University
    [2018] eKLR
  • Council for Civil Services Unions –vs- Minister for Civil Service
    (1985) AC 374 at 401D
  • Fredrick Masaghwe Mukasa v Director of Public Prosecutions & 3 others
    [2016] eKLR
  • Republic vs National Water Conservation & Pipeline Corporation & 11 Others
    [2015] eKLR
  • Republic v the District Land Registrar Uasin Gishu & 2 others
    [2013] eKLR
  • Sabina Nyambura Githina & another v Land Registrar, Thika Land Registry & 3 others; Real Capital Ltd (Interested Party)
    [2021] eKLR
  • Republic v Public Procurement Administrative Review Board & 2 others Ex-Parte Pelt Security Services Limited
    [2018] eKLR
  • Commissioner of Lands v Kunste Hotel Ltd
    [1997] eKLR
  • Municipal Council of Mombasa v Republic & another
    [2002] eKLR
  • Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining & 9 others
    [2017] eKLR
Jurisdiction invoked
Section 13(7)(b) of the Environment and Land Court Act; Sections 8 and 9 of the Law Reform Act; Order 53 of the Civil Procedure Rules

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 Land Registrar Siaya District & another Ex parte Juma Nyateko & 2 others; Maurice Onyango Okech (Interested Party) [2022] KEELC 1981 (KLR)", Case Analysis (2022). Judicial Review Application Number 6 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1981/eng@2022-01-20

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