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ELCPartially AllowedJudicial Review Notice of Motion dated November 18, 2020· [2022] KEELC 3700 (KLR)

Republic v The Land Registrar, Busia & 2 others; Ochieng (Interested Party); Tebino (Exparte) (Suing as the administrator of the Estate of Joseph Martin Wandera Dindi) (Environment and Land Judicial Review Case E004 of 2020) [2022] KEELC 3700 (KLR)

High Court of Kenya
4 August 2022
2,854 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's High Court quashed a gazette notice and replacement title issued without proper statutory declarations, protecting a co-administrator's inheritance rights.

What this practically means

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Executive summary

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This was a judicial review notice of motion dated November 18, 2020 in which the ex parte applicant, a co-administrator of the estate of Joseph Martin Wandera Dindi, sought an order of certiorari to quash Gazette Notice No 6470 dated September 4, 2020 and the purported new title deed issued for land parcel Bukhayo/Kisoko/307 solely in the name of the interested party, her co-administrator. The respondent filed grounds of opposition contending the motion was defective and that the Registrar had followed section 33 of the Land Registration Act on replacement of lost titles. The interested party denied initiating the replacement and blamed the applicant for withholding the original title. A preliminary difficulty arose because the substantive motion had been allowed on April 15, 2021, prompting the applicant to argue the court was functus officio. The court found the April 15, 2021 orders were made in error - the application was treated as unopposed and the order cited a wrong date - and set them aside ex debito justitiae following Patrick Omondi Opiyo t/a Dallas Pub v Shaban Keah & another [2018] eKLR. On the merits, the court held that at the time of publication the Registrar's records showed the deceased as registered proprietor; the Gazette Notice wrongly described the interested party as absolute owner, no statutory declaration by both administrators was obtained as required by section 33(2) of the Land Registration Act, and the applicant's name was excluded. The notice was therefore unprocedural and ultra vires. The court granted certiorari quashing Gazette Notice No 6470 and the new title deed, and awarded the ex parte applicant half costs against the respondents and the interested party jointly and severally.

Key legal issues

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01

Whether the court was functus officio following the orders of April 15, 2021

Holding

The court held that although the applicant's functus officio position might be correct, the orders of April 15, 2021 were made in error - the application was treated as unopposed despite grounds of opposition on file, and the order referred to a wrong date - and could be set aside ex debito justitiae.

Reasoning

The court identified two errors on the face of the record: the orders were granted on the mistaken presumption that the application was unopposed when the respondents had already filed grounds of opposition, and the order referenced the wrong date of the application granted. Relying on the Patrick Omondi Opiyo decision, the court exercised its power to set aside its own erroneous order in the interest of doing justice, thereby reopening the merits of the motion.

p. 4
02

Whether Gazette Notice No 6470 and the resultant new title deed were lawful

Holding

The Gazette Notice referring to the interested party as absolute registered owner was unprocedural and ultra vires the Registrar's statutory powers, and the Registrar acted irregularly by proceeding without a statutory declaration by both administrators and by excluding the applicant's name.

Reasoning

At the time of publication the Registrar's own records showed the suit land registered in the name of the deceased, Joseph Martin Wandera Dindi. Section 33(2) of the Land Registration Act requires a statutory declaration by all registered proprietors before replacement of a lost title. Publishing a notice describing the interested party as absolute owner, and issuing a replacement title solely in her name during the pendency of a succession cause with a confirmed grant in favour of two administrators, was contrary to the Registrar's records and the statutory scheme.

p. 5

Legal principles established

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  • A judicial review court may not interfere with an administrative decision that lies within a range of permissible options unless the choice made is at odds with the law.
  • Where a court's order has been made in error, the court may set it aside of its own motion in the interests of justice.

Court orders

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  1. 1.The court's orders of April 15, 2021 were set aside ex debito justitiae as having been made in error, guided by the decision in Patrick Omondi Opiyo t/a Dallas Pub v Shaban Keah & another [2018] eKLR
  2. 2.An order of certiorari issued calling into the court and quashing in its entirety Gazette Notice No 6470 dated September 4, 2020 and the purported subsequent new title deed for all that land known as title No Bukhayo/Kisoko/307
  3. 3.Half costs of the suit awarded to the ex parte applicant, to be paid jointly and severally by the respondents and the interested party

Authorities

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Legislation

  • Law Reform Actsection 9 (Cap 26)
  • Fair Administrative Action Actsections 7(1)(2)(c,d,e,f), 10(1) and 11 (No 4 of 2015)
  • Civil Procedure RulesOrder 53 rules 1(1)(2) and 2
  • Constitution of KenyaArticle 165(6); Article 159(2)(d)
  • Land Registration Actsection 33 and section 33(2)

Cases cited (5)

  • Republic v Public Procurement Administrative Review Board Ex-Parte Kotaa East African Limited; Kenya Ports Authority & 2 others (Interested Parties)
    [2021] eKLR
  • Republic v Public Procurement Administrative Review Board & 3 others, Ex Parte Olive Telecommunication PVT Limited
    eKLR
  • Republic v Public Procurement Administrative Review Board; Shenzhen Instrument Co Limited & another (Interested Party) Ex parte Kenya Power and Lighting Company Limited
    [2019] eKLR
  • Paul Kiplagat Birgen & 25 others v Interim Independent Electoral Commission & 2 others
    [2011] eKLR
  • Patrick Omondi Opiyo t/a Dallas Pub v Shaban Keah & another
    [2018] eKLR
Jurisdiction invoked
Article 165(6) of the Constitution; sections 8 and 9 of the Law Reform Act (Cap 26); sections 7, 10 and 11 of the Fair Administrative Action Act; Order 53 rules 1 and 2 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 The Land Registrar, Busia & 2 others; Ochieng (Interested Party); Tebino (Exparte) (Suing as the administrator of the Estate of Joseph Martin Wandera Dindi) (Environment and Land Judicial Review Case E004 of 2020) [2022] KEELC 3700 (KLR)", Case Analysis (2022). Judicial Review Notice of Motion dated November 18, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3700/eng@2022-08-04

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