Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Judicial Review Case 21 of 2020· [2022] KEELC 14590 (KLR)

Embakasi Industrial Project Limited v Chief Land Registrar & 2 others

Environment and Land Court of Kenya
31 October 2022
COChristine A Ochieng
3,683 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ruled that disputes over competing land titles must be fought in a civil suit, not through judicial review, and dismissed the application.

What this practically means

#

Executive summary

#
The Applicant, registered proprietor of LR No 12715/601 under Grant IR 45525/1 since May 21, 1992, sought judicial review orders quashing Gazette Notices No 3115 (April 17, 2020) and No 4251 (June 26, 2020) issued by the 2nd Respondent, a Land Registrar, in the process of issuing a Provisional Certificate of Title to the 3rd Respondent for the same land, plus prohibition and mandamus compelling rectification of the register. The 3rd Respondent claimed he lost his original title, followed the Land Registration Act replacement procedure, and that the property had since been transferred to Ciphei Trading Limited, a non-party. He argued the suit was an ownership dispute disguised as judicial review. A second motion sought contempt orders against the 2nd and 3rd Respondents for registering the 3rd Respondent despite a stay order of July 7, 2020. The court, applying the Council for Civil Service Unions grounds and Article 47, held that with two competing titles both claiming registration on May 21, 1992, cancellation or rectification of title under Section 80 of the Land Registration Act requires viva voce evidence in a civil suit, which judicial review cannot accommodate. The Registrar had followed the statutory process, the Applicant lodged no objection to the Gazette Notices and never registered the court order under Section 68(3). The 3rd Respondent, a private party, committed no reviewable administrative action. On contempt, the process server's affidavit showed no Penal Notice and no personal service on the 3rd Respondent, so the four elements of civil contempt were unproved. Both applications failed; the July 14, 2020 motion was struck out, the August 27, 2021 contempt motion disallowed, with no order as to costs.

Key legal issues

#
01

Entitlement to certiorari, prohibition and mandamus

Holding

JR application incompetent; prayers cannot issue

Reasoning

Both parties claim registration on May 21, 1992, producing competing titles. The Registrar followed the Land Registration Act process for a lost title, and the Applicant lodged no objection to the Gazette Notices. Rectification under Section 80 requires oral evidence, so the dispute belongs in a civil suit, not judicial review.

02

Contempt of the July 7, 2020 orders

Holding

Contempt not proved against either Respondent

Reasoning

The process server's affidavit shows the order carried no Penal Notice; the advocate served declined to acknowledge service stating she had no instructions for the 3rd Respondent, and there was no evidence of personal service on the 2nd Respondent. The four elements of civil contempt were therefore not established.

p. 6
03

JR against a private party

Holding

3rd Respondent is not a public officer; no administrative action attributable to him

Reasoning

The court could not decipher what administrative action the 3rd Respondent, a private registered proprietor seeking replacement of a lost title, had committed to subject him to judicial review proceedings.

p. 5

Legal principles established

#
  • Where two competing titles exist, cancellation or rectification of title requires viva voce evidence in a civil suit and cannot be achieved through judicial review
  • A Land Registrar may issue a fresh title where an owner reports one missing, provided the process in the Land Registration Act is followed
  • Elements of civil contempt: clear unambiguous order, knowledge or notice, breach, and deliberate conduct, proved to a standard higher than civil cases

Court orders

#
  1. 1.The Notice of Motion application dated July 14, 2020 struck out
  2. 2.The Notice of Motion application dated August 27, 2021 disallowed
  3. 3.No order as to costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 47
  • Fair Administrative Actions ActSection 7
  • Land Registration ActSection 33(3)
  • Land Registration ActSection 68(3)
  • Land Registration ActSection 80
  • Environment and Land Court ActSection 29
  • Contempt of Court ActSection 4(1)(a)

Cases cited (15)

  • Judicial Service Commission & another v Njora (Civil Appeal 486 of 2019) [2021] KECA 366 (KLR)
    [2021] KECA 366 (KLR)

    Court may look at the merit of the underlying decision in JR

  • African Management Communication International Limited v Joseph Mathenge Mugo & Another
    (2013) eKLR
  • Hadkinson v Hadkinson
    (1952) P 235
  • Gubabchance Popatlal Shah & Another
    (1990) eKLR
  • Samuel M N Mweru & Others v National Land Commission & 2 others
    (2020) eKLR
  • Mutitika v Baharini Farm Limited
    (1985)
  • Carey v Laiken
    2015 SCC 17
  • Republic v Principal Secretary Ministry of Defence Ex parte George Kariuki Waithaka
    (2019) eKLR
  • Peter Mbugua Ngugi & 2 Others v Chief Land Registrar & 6 others
    (2020) eKLR
  • Cherotich Kiprono Ruto v Reuben Kipngetich & 4 Others
    (2020) eKLR
  • Sheila Cassart Issenberg & Another v Anthony Machatha Kinyanjui
    (2021) eKLR
  • Council for Civil Service Unions v Minister for Civil Service
    [1985] AC 374

    Grounds of judicial review: illegality, irrationality, procedural impropriety

  • Baker v Canada (Minister of Citizenship and Immigration)
    2 SCR 817

    Values underlying the duty of procedural fairness

  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    Civil Appeal No 185 of 2001
  • North Tetu Farmers Co Ltd v Joseph Nderitu Wanjohi
    (2016) eKLR

    Four elements of civil contempt

Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court under Article 47 of the Constitution and Section 7 of the Fair Administrative Actions Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Embakasi Industrial Project Limited v Chief Land Registrar & 2 others", Case Analysis (2022). Environment and Land Judicial Review Case 21 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14590/eng@2022-10-31

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