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ELCDismissedJudicial Review Motion dated September 20, 2021 (Siaya)· [2023] KEELC 404 (KLR)

Republic v District Land Registrar, Siaya; Okong’o (Exparte) (Environment and Land Judicial Review Case E002 of 2021) [2023] KEELC 404 (KLR)

Environment and Land Court
2 February 2023
AKA. Y. Koross
2,448 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The High Court's Environment and Land Court in Siaya dismissed a landowner's bid to overturn a gazette notice cancelling his title, finding the notice targeted a different parcel.

What this practically means

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Executive summary

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The ex parte applicant moved the court by chamber summons dated September 20, 2021 under Section 8(2) of the Law Reform Act and Order 53 Rule 1 of the Civil Procedure Rules, and obtained leave to seek certiorari to quash gazette notice no. 5399 of July 30, 2020 by which the respondent, the Land Registrar, purportedly revoked his registration as proprietor of East Gem/Anyiko/1769. In his substantive notice of motion he additionally sought vesting of the property, a title deed, compensation, prohibition and mandamus. The respondent did not enter appearance or file pleadings despite service. The court held that the prayers exceeding the leave granted were incompetent and a nullity, and struck out the offending words and paragraphs (b) to (e), applying the decision of Aburili J in the Jeff Koinange case. On the merits, the court found the registrar acted ultra vires since only the court, under Section 80 of the Land Registration Act, may direct cancellation of a registration; Section 79 does not empower the registrar to cancel titles. However, the court noted the gazette notice referenced East/Anyiko/1769, a distinct parcel from the suit property, and therefore did not affect it, so the reliefs could not issue. The application was also filed outside the statutory six-month period and was statutory barred. The judicial review proceedings were dismissed with the ex parte applicant bearing his own costs.

Key legal issues

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01

Whether prayers in the substantive motion exceeding the leave granted could stand

Holding

They could not; the court struck out the offending prayers as a nullity.

Reasoning

Order 53 Rules 1 and 3(1) of the Civil Procedure Rules confine the substantive motion to the relief for which leave was obtained. The ex parte applicant introduced new prayers for vesting, a title deed, compensation, prohibition and mandamus without leave. Following the persuasive decision of Aburili J, the court struck out the offending words and paragraphs (b) to (e).

p. 4
02

Whether the Land Registrar had power to cancel the ex parte applicant's title by gazette notice

Holding

The registrar acted ultra vires; cancellation of a registration is vested in the court under Section 80 of the Land Registration Act, not the registrar under Section 79.

Reasoning

Section 79 limits the registrar's rectification powers to errors or omissions that do not materially affect a proprietor's interests. Cancellation of a title materially affects those interests and is exclusively a judicial function under Section 80. The court accepted counsel's reliance on Republic v Chief Land & Another ex-parte Yosabia Kerubo Manyura and found the registrar acted ultra vires.

p. 5
03

Whether the impugned gazette notice affected the suit property

Holding

It did not; the gazette notice referenced East/Anyiko/1769 while the suit property is East Gem/Anyiko/1769, distinct parcels, so the reliefs could not issue.

Reasoning

The court noted the discrepancy between the parcel named in the gazette notice and the suit property in the pleadings. Since each parcel has a unique reference, the impugned notice did not cancel the applicant's parcel. Absent any reference to the suit property, the court could not grant the orders sought, rendering the motion unmerited.

p. 5
04

Whether the judicial review application was filed within the statutory period

Holding

It was filed outside the six-month period and was statute-barred under Section 9(3) of the Law Reform Act and Order 53 Rule 2.

Reasoning

The gazette notice was issued on July 30, 2020 and the chamber summons for leave was filed on September 21, 2021, well beyond the statutory six months. The court observed the filing was outside the statutory period and therefore statutory barred.

p. 5

Legal principles established

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  • A substantive notice of motion in judicial review proceedings is limited to the prayers for which leave was granted; prayers outside the leave are incompetent and a nullity.
  • The Land Registrar's power of rectification under Section 79 of the Land Registration Act does not extend to cancelling a title; only the court may direct cancellation of a registration under Section 80.
  • Each parcel of land has a unique reference distinct from any other parcel; two distinct parcel numbers cannot exist over the same parcel of land.

Court orders

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  1. 1.Struck out the words 'and direct the same to vest with the ex parte applicant' in prayer (a) of the motion
  2. 2.Struck out in entirety paragraphs (b), (c), (d) and (e) of the prayers in the motion
  3. 3.Dismissed the judicial review proceedings in their entirety
  4. 4.Ordered the ex parte applicant to bear his own costs

Authorities

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Legislation

  • Law Reform ActSection 8(2); Section 9(3)
  • Civil Procedure RulesOrder 53 Rules 1, 2, 3(1), 4 and 6
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of Kenya, 2010Articles 10, 27, 40, 47(1) and (2)
  • Fair Administrative Action ActSection 4(1), (2) and (3)
  • Land Registration ActSections 79(2), 80 and 80(1)
  • Registered Land Act (repealed)Section 18(3) and (4)

Cases cited (3)

  • Republic v Chief Land & Another ex-parte Yosabia Kerubo Manyura
    (2018) eKLR
  • Republic v Chief Magistrate's Court Nairobi Exparte Jeff Koinange & 11 others
    [2017] eKLR
  • National Bank of Kenya v Mary Awino Abiero (suing as the Legal Representative of the Estate of Everest Abiero Ameny & another; Colinet Auctioneers (Interested Party)
    [2022] eKLR
Jurisdiction invoked
Section 8(2) of the Law Reform Act and Order 53 Rule 1 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 District Land Registrar, Siaya; Okong’o (Exparte) (Environment and Land Judicial Review Case E002 of 2021) [2023] KEELC 404 (KLR)", Case Analysis (2023). Judicial Review Motion dated September 20, 2021 (Siaya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/404/eng@2023-02-02

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