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ELCPartially AllowedJudicial Review application (Notice of Motion dated March 18/19, 2021)· [2022] KEELC 3913 (KLR)

Republic v County Land Registrar, Busia & 2 others; Oyalo & another (Exparte) (Environment and Land Judicial Review Case E001 of 2021) [2022] KEELC 3913 (KLR)

Environment and Land Court
8 June 2022
AOA Omollo
2,642 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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What this practically means

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Executive summary

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The 1st and 2nd ex parte applicants, registered owners of Bukhayo/Mundika/10836 and 10837 acquired through transmission in Busia High Court Succession P&A No 582 of 2019, sought judicial review orders of certiorari, mandamus and prohibition against the Land Registrar Busia County's report of January 21, 2021, which found the boundaries as they stood on the ground and recommended that the partition dividing the original parcel Bukhayo/Mundika/807 into two be revoked and a new subdivision create five parcels for five beneficiaries. The 2nd and 3rd interested parties, brothers of the applicants' deceased father, opposed, alleging the applicants held the land in trust for all siblings and had hoodwinked the 2nd interested party into signing subdivision papers. The applicants argued the Registrar had no power to revoke titles or determine trusteeship, powers reserved to the High Court. Framing two issues - whether the Registrar acted ultra vires, and costs - the court held the Registrar partially acted ultra vires in recommending revocation of a subdivision effected pursuant to a succession cause, and quashed that part of his verdict by certiorari; but his boundary findings were within jurisdiction and were not set aside. The court found no trusteeship order was actually made, and refused mandamus because no evidence showed the titles had been revoked, the Registrar himself conceding revocation could only be done through court. The notice of motion was allowed in those terms, with each party bearing their own costs, on June 8, 2022 at Busia.

Key legal issues

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01

Whether the Land Registrar Busia County acted ultra vires his powers

Holding

The Land Registrar partially acted ultra vires in recommending revocation of the subdivision, which was quashed by certiorari, but acted within jurisdiction on the boundary findings, which were left intact.

Reasoning

The Registrar's powers derive from sections 14, 18 and 79 of the Land Registration Act. The applicants obtained the two parcels through transmission in Busia Succession Cause No 582 of 2019. The Registrar's recommendation that the partition be revoked and a new subdivision create five parcels exceeded those powers. However, his findings on boundaries were within jurisdiction and stand. No trusteeship order was actually made, and no evidence showed the titles were revoked, so mandamus was refused.

p. 5
02

Whether the Land Registrar made an order of trusteeship

Holding

No order of trusteeship was made; the report only recorded an acknowledgment that the two registered names held the land on behalf of all five brothers.

Reasoning

The court examined the impugned verdict and found it contained findings on boundaries and a recommendation for revocation of the subdivision, but no order of trusteeship. The Registrar merely noted the 2nd interested party's acknowledgment that registration in two names was on behalf of five brothers. This ground of the application therefore failed on the facts as pleaded and as evidenced by the report itself.

p. 5

Legal principles established

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  • To succeed in judicial review, the applicant must show the decision is tainted with illegality, irrationality or procedural impropriety
  • The Land Registrar has power to alter a title only in defined circumstances such as fraud, error, mistake or omission

Court orders

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  1. 1.A writ of certiorari issued against the findings and verdict of the Land Registrar Busia County dated January 21, 2021 in so far as it recommended the revocation of the subdivision of the suit plot into two and that a new subdivision be undertaken; that part of the verdict quashed, while the first part of the verdict on boundaries is not set aside
  2. 2.The Land Registrar Busia is ordered and prohibited from revoking the title deeds No Bukhayo/Mundika/10836 and 10837
  3. 3.Each party shall cater for their own costs

Authorities

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Legislation

  • Civil Procedure Actsections 1, 1A, 1B, 2, 2A, 3, 3A, 63(e)
  • Civil Procedure RulesOrder 42, Order 52
  • Constitution of Kenya 2010article 159
  • Land Registration Actsections 14, 18, 79(2)
  • Trustee Actsection 37
  • Fair Administrative Action Act (provision relied on by applicants for review of administrative action)section 7(2)(e)

Cases cited (3)

  • Pastoli v Kabale District Local Government Council & others
    (2008) 2 EA 300
  • Council of Civil Service Union v Minister for the Civil Service
    [1985] AC 2
  • Francis Bahikirwe Muntu and others v Kyambogo University
    High Court, Kampala, miscellaneous application number 643 of 2005 (UR)
Jurisdiction invoked
Judicial review jurisdiction under section 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, invoked via sections 1, 1A, 1B, 2, 2A, 3, 3A and 63(e) of the Civil Procedure Act, orders 42 and 52 of the Civil Procedure Rules and article 159 of the Constitution

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 Land Registrar, Busia & 2 others; Oyalo & another (Exparte) (Environment and Land Judicial Review Case E001 of 2021) [2022] KEELC 3913 (KLR)", Case Analysis (2022). Judicial Review application (Notice of Motion dated March 18/19, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3913/eng@2022-06-08

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