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ELCPartially AllowedConstitutional Petition No 4 of 2022· [2023] KEELC 111 (KLR)

Sedani & another v County Land Registrar, Kisumu & another (Constitutional Petition 4 of 2022) [2023] KEELC 111 (KLR)

Environment and Land Court
19 January 2023
2,515 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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Kenya's land registrar cannot restrict your title without notifying you first, and a court has ordered removal of a restriction placed secretly.

What this practically means

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Executive summary

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The petitioners, registered joint owners of leasehold interest in LR No. Kisumu Municipality/Block 12/306 since July 28, 2010, petitioned the County Land Registrar, Kisumu and the Ethics and Anti-Corruption Commission. They discovered on or about July 16, 2020 that a restriction had been registered over the title on March 28, 2017 at the instance of the 2nd respondent via a letter dated February 11, 2016, without any notice to them as required by section 77(1) of the Land Registration Act. The Registrar later wrote to the EACC to show cause why the restriction should not be removed; the EACC did not respond but instead launched investigations, furnishing the Registrar with documents. The petitioners sought removal of the restriction and alleged breach of Article 47 (fair administrative action) and Article 40(2) (deprivation of property). The 1st respondent defended the restriction as a valid preservation measure and contended the petition was premature and the wrong process followed; the 2nd respondent did not file a response. The court held that registration of the restriction without notice and without a hearing breached Article 47 and sections 4 and 6 of the Fair Administrative Action Act, 2015, and that the Registrar was obliged to remove the restriction once the EACC failed to show cause. However, the restriction being merely investigative did not, per se, breach Article 40(2) property rights. The petition succeeded in part: a declaration of unconstitutionality and illegality was issued, a mandatory injunction compelled removal of the restriction, damages were refused as unproved, and costs were awarded to the petitioners.

Key legal issues

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01

Whether registration of a restriction without notice to the proprietors violated Article 47

Holding

Yes - the restriction was entered without notice and without a hearing, breaching fair administrative action and constituting procedural impropriety.

Reasoning

The court found that on March 28, 2017 the 1st respondent registered the restriction on the complaint of the 2nd respondent without informing the petitioners beforehand. Section 77(1) of the Land Registration Act requires written notice of a restriction to the proprietor affected. Registration without notice and hearing breached the right to be heard under Article 47, which constitutionalises fair administrative action, echoed in sections 4 and 6 of the Fair Administrative Action Act, 2015. The entry was shrouded with procedural impropriety contrary to Articles 10 and 47.

p. 5
02

Whether the 1st respondent was under a duty to remove the restriction after the 2nd respondent failed to show cause

Holding

Yes - having issued a show-cause letter which went unanswered, the 1st respondent was obliged to remove the restriction.

Reasoning

The County Land Registrar wrote to the 2nd respondent to show cause why the restriction should not be removed but there was no reply. Section 78 of the Land Registration Act empowers the Registrar to order removal of a restriction. The court held it was upon the 1st respondent to remove the restriction once the 2nd respondent defaulted, and the Registrar had the power to do so upon the petitioners' request.

p. 5
03

Whether the restriction breached property rights under Article 40(2)

Holding

No - the restriction was merely investigative and did not amount to deprivation of property.

Reasoning

While the petitioners alleged deprivation without due process contrary to Article 40(2), the court distinguished the entry of a restriction (prohibiting dealings) from a takeover of property. Because the restriction was investigative in nature rather than a transfer or deprivation, the property rights claim failed; only the procedural unfairness claim succeeded.

p. 6

Legal principles established

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  • Registration of a restriction without prior notice to the proprietor breaches the right to fair administrative action under Article 47 of the Constitution
  • Article 47 constitutionalises the right to written reasons for administrative action, as set out in sections 4 and 6 of the Fair Administrative Action Act, 2015
  • A restriction that is merely investigative does not, per se, amount to deprivation of property under Article 40(2)

Court orders

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  1. 1.A declaration that the actions of the respondents in placing a restriction on the petitioners' property without due process of law are illegal, unconstitutional and in breach of the fundamental rights and freedoms of the petitioners
  2. 2.A mandatory injunction compelling the 1st respondent to remove the restriction registered on March 28, 2017 against title to LR No. Kisumu Municipality/Block 12/306
  3. 3.Costs of the petition to the petitioners

Authorities

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Legislation

  • Land Registration Actsections 76, 77(1), 78
  • Fair Administrative Action Actsections 4 and 6
  • Constitution of Kenya, 2010Articles 10, 40(2), 47

Cases cited (2)

  • Judicial Service Commission v Mbalu Mutava & another
  • President of the Republic of South Africa and others v South African Rugby Football Union and others
Jurisdiction invoked
Article 47 of the Constitution of Kenya, 2010 (petition for violation of rights in relation to registration of a restriction over land)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sedani & another v County Land Registrar, Kisumu & another (Constitutional Petition 4 of 2022) [2023] KEELC 111 (KLR)", Case Analysis (2023). Constitutional Petition No 4 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/111/eng@2023-01-19

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