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ELCAllowedEnvironment and Land Judicial Review Case E021 of 2021· [2022] KEELC 15620 (KLR)

Kakenyi & another v Chief Land Registrar Nairobi & another

Environment and Land Court at Nairobi
8 December 2022
LMLucy N. Mbugua
909 words in judgment
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The bottom line

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Kenya's Environment and Land Court quashed a land restriction placed without notice, confirming landowners must be heard before the Registrar limits their property rights.

What this practically means

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Executive summary

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The ex parte applicants, registered proprietors of LR No 18084/2 in Karen, Nairobi, sought judicial review orders of certiorari to quash a caveat/restriction placed on the suit property by the Chief Land Registrar on April 29, 2013, and mandamus compelling its removal. They deponed that they purchased the land, secured and registered a charge with Equity Bank in March 2013, whereupon the Registrar placed the caveat without notice or explanation, leaving it in place indefinitely and curtailing their rights as proprietors, contrary to sections 77 and 78 of the Land Registration Act and articles 19, 35, 40 and 47 of the Constitution. The respondents filed no response and the suit was unopposed. The court, applying the Yaya Towers principle that judicial review concerns the decision-making process rather than merits, held that under section 77(1) of the Land Registration Act (and formerly section 116 of the Government Lands Act) the Registrar was obliged to give written notice of the restriction to the affected proprietor. Relying on Matoya v Standard Chartered Bank, it found the Registrar must inquire, issue notices and hear affected persons before imposing a restriction. The applicants' assertion of registered ownership was unrebutted. The court concluded that the failure to give notice, coupled with the indefinite duration of the restriction, was irrational, unreasonable, in breach of natural justice and a breach of legitimate expectation. The substantive motion was allowed with no orders as to costs.

Key legal issues

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01

Lawfulness of the caveat/restriction placed without notice

Holding

The failure to issue notice and the indefinite nature of the restriction rendered the decision irrational, unreasonable, in breach of natural justice and legitimate expectation; certiorari and mandamus were merited.

Reasoning

Section 77(1) of the Land Registration Act obliges the Registrar to give written notice of a restriction to the affected proprietor, echoing the former section 116 of the Government Lands Act. No notice was given in 2013 and no explanation was forthcoming. The restriction remained indefinite since 2013, curtailing the registered proprietors' rights. The court applied the Yaya Towers process-review standard and the Matoya requirements of inquiry and hearing, and found the decision-making process unlawful.

p. 2

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision.
  • The Registrar must give written notice of a restriction to the affected proprietor.
  • Before ordering a restriction the registrar must make inquiries, issue notices and hear affected persons, and not act on whim or caprice.

Court orders

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  1. 1.Prayers sought in the substantive notice of motion dated November 4, 2021 allowed (certiorari to quash the caveat/restriction and mandamus to compel its removal)
  2. 2.No orders as to costs

Authorities

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Legislation

  • Land Registration Actsections 77(1) and 78
  • Government Lands Act (cap 180, repealed)section 116
  • Constitution of Kenya, 2010articles 19, 35, 40 and 47

Cases cited (3)

  • Republic v Kenya Revenue Authority exparte Yaya Towers Ltd
    (2008) eKLR

    Judicial review examines the decision-making process, not the merits.

  • Matoya v Standard Chartered Bank (K) LTD & others
    [2003] I EA 140

    Registrar must inquire, give notice and hear affected persons before imposing a restriction.

  • Mukuria James Chacha & 2 others v Land Registrar Muranga
    [2019] eKLR

    Cited as the case in which Matoya was quoted.

Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court under leave granted on November 3, 2021 to institute judicial review proceedings

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, "Kakenyi & another v Chief Land Registrar Nairobi & another", Case Analysis (2022). Environment and Land Judicial Review Case E021 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15620/eng@2022-12-08

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