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ELCDismissedEnvironment and Land Judicial Review Miscellaneous Application E030 of 2022· [2023] KEELC 18483 (KLR)

Kinoro v Land Registrar Murang’a & another

Environment and Land Court
29 June 2023
2,466 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a judicial review bid to cancel subdivided land titles, ruling land ownership disputes must be fought through evidence, not review.

What this practically means

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Executive summary

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The Applicant, James Kamau Kinoro, moved the Environment and Land Court at Murang'a by Chamber Summons dated November 30, 2022 seeking leave to apply for judicial review orders: certiorari to quash the Land Registrar's registration of subdivisions of land parcel Loc.2/Kangari/5107; mandamus to cancel the resulting titles and reconsolidate the parcels in the name of the deceased registered proprietor, Peter Mwangi Wambugu; and prohibition against further transfers pending a fresh succession cause. He claimed a 0.2-acre creditor's interest allowed in succession proceedings whose grant had been revoked, and contended the transmission and subdivision were ultra vires and null. The Respondents opposed, arguing that ownership disputes requiring evidence cannot be determined by judicial review and that the registered owners of the new parcels were not parties and could not have their titles cancelled unheard. Gacheru J first interrogated jurisdiction. Although prerogative orders over land fall within Section 13(7)(b) of the Environment and Land Court Act, the Court found the dispute emanated from a succession cause whose parties were not before it, that the estate's administration status was unclear, and that ownership questions require viva voce evidence unsuitable for judicial review. Relying on Owners of the Motor Vessel 'Lillian S', In re Estate of Leah Wanguii Nding'uri, Barasa W. Wabomba and Sanghami Investment, the Court held it lacked jurisdiction, that cancelling non-parties' titles would breach natural justice, and that the Applicant had not exhausted available remedies. The judicial review application was dismissed entirely. No costs order was recorded.

Key legal issues

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01

Jurisdiction of the ELC over judicial review arising from succession proceedings

Holding

The Court held it lacked jurisdiction to entertain the judicial review application because the dispute emanates from a succession cause and involves ownership of land requiring evidence.

Reasoning

Although prerogative orders over land fall under Section 13(7)(b) of the ELC Act, the application arose from succession proceedings whose parties were not before the Court. The estate's administration status was unclear, ownership issues required viva voce evidence, and the Applicant had not exhausted available remedies in the succession court.

02

Natural justice and cancellation of titles of non-parties

Holding

Titles of registered proprietors who were neither heard nor privy to the earlier proceedings cannot be cancelled.

Reasoning

The registered owners of the subdivided parcels were not parties to the succession cause or the judicial review. Cancelling their titles without affording them a hearing would breach the rules of natural justice, as held in Barasa W. Wabomba.

p. 5
03

Exhaustion of alternative remedies

Holding

The Applicant had not exhausted remedies available in the succession court before moving the ELC by judicial review.

Reasoning

The trial succession court had ruled on the protest and directed dissatisfied parties to appeal. The Applicant did not demonstrate any post-ruling application to enforce the orders, so the judicial review application was an attempt to oust the jurisdiction of other competent courts.

p. 5

Legal principles established

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  • Judicial review is not a forum for determining disputes of ownership of land requiring viva voce evidence
  • A court must down its tools the moment it finds it lacks jurisdiction
  • Cancellation of titles of parties not heard or privy to proceedings breaches natural justice

Court orders

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  1. 1.The instant Judicial Review application is dismissed entirely as the Court does not have jurisdiction

Authorities

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Legislation

  • Environment and Land Court ActSection 13 and Section 13(7)(b)
  • Law of Succession Actgeneral reference

Cases cited (11)

  • Republic vs Kenya Revenue Authority Commissioner Ex Parte Keycorp Reals Advisory Limited
    {2019}eKLR

    Threshold for grant of leave for judicial review

  • Meixner & Another vs AG
    {2005} KLR 189

    What an Applicant must demonstrate before leave can be granted

  • Republic vs National Council for Persons with Disabilities & Another Ex Parte Daniel Njiru Ngai
    {2021}eKLR

    Court need not delve deeply into arguments when exercising leave discretion

  • Samuel Maina Njoroge vs Land Dispute Tribunal Ruiru & 2 Others
    {2019} eKLR

    Availability of alternative mechanism should not bar judicial review reliefs

  • Giella vs Cassman Brown & Co Advocates Ltd
    {1975}E.A 358

    Principles for grant of injunctions

  • Sauti Communication Limited vs Communication Authority of Kenya
    {2020}eKLR

    Grant of leave can operate as stay

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd.
    (1989)

    Jurisdiction is everything; court must down tools where it lacks jurisdiction

  • In re Estate of Leah Wanguii Nding'uri (Deceased)
    [2020] eKLR

    Point at which an Applicant can move the ELC after revocation of grant in succession proceedings

  • Barasa W. Wabomba & another v Omunyin Kituyi & 2 others
    [2016] eKLR

    Cancelling titles of parties not heard breaches natural justice

  • Sanghami Investment Ltd v Officer in Charge Nairobi Remand and Allocation Prison
    (2007) I EA 354

    Land ownership disputes require viva voce evidence, ousting judicial review

  • Republic v Commissioner of Land, Director General & 8 others
    [2013] eKLR

    Quoting Sanghami Investment on judicial review and land ownership disputes

Jurisdiction invoked
Section 13(7)(b) of the Environment and Land Court Act

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, "Kinoro v Land Registrar Murang’a & another", Case Analysis (2023). Environment and Land Judicial Review Miscellaneous Application E030 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18483/eng@2023-06-29

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