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ELCDismissedEnvironment and Land Judicial Review Case E002 of 2022· [2023] KEELC 20078 (KLR)

Republic v Land Registrar – Busia County & another; Mbingi (Interested Party); Egesa (Exparte Applicant)

Environment and Land Court of Kenya
28 September 2023
BOBoaz N. Olao
3,815 words in judgment
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The bottom line

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What this practically means

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Executive summary

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Leonard Wandera Egesa sought judicial review orders of certiorari, prohibition and mandamus against the Land Registrar Busia, who had concluded after a hearing on 5th April 2022 that the Applicant's title to Bukhayo/Bugengi/1205 was a forgery and announced intention to rectify the register under Section 79(2) of the Land Registration Act. The Applicant claimed his father purchased the land in 1999 from Elisha Mbingi Oswaga with Land Control Board consent. The Registrar responded that the title deed was a forgery - wrong paper, no serial number, non-standard typing and an impossible stamp - and that the alleged vendor died on 8th November 1983, sixteen years before the purported sale. The Interested Party, the vendor's widow, confirmed the original title was with the Public Trustee and that the Applicant had filed a succession citation against her in 2022. Olao J restated that judicial review concerns the decision-making process, not merits, and that a applicant must show illegality, irrationality or procedural impropriety. The Court held the Registrar has no power to cancel titles, only to rectify the register where fraud or lack of proper care is established; no breach of natural justice was alleged; prohibition could not lie since the proceedings had concluded; and mandamus was speculative since the title remained registered in the Applicant's names. The Notice of Motion was dismissed with costs to the Respondents and the Interested Party.

Key legal issues

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01

Whether certiorari lay against the Land Registrar's decision

Holding

Certiorari refused; the Registrar acted within his statutory rectification powers under Section 79(2) and no breach of natural justice was alleged

Reasoning

The Registrar heard all parties including the Applicant on 5th April 2022, found the title a forgery and the vendor dead since 1983, and decided to rectify the register. Certiorari quashes decisions made without jurisdiction or in breach of natural justice; neither was established here.

p. 6
02

Whether prohibition lay to stop cancellation or alteration of the title

Holding

Prohibition declined; the proceedings were terminated and the Registrar intended only lawful rectification, not cancellation of a non-existent title

Reasoning

Prohibition looks to the future and cannot quash a decision already made. The Registrar's proceedings concluded with a report on 5th April 2022; nothing remained for him to do beyond rectification under Section 79(2), so the order would be ineffectual.

p. 7
03

Whether mandamus lay to restore the registration

Holding

Mandamus refused as speculative; the title remained registered in the Applicant's names and no registration was shown to have been lost

Reasoning

The certificate of title remained in the Applicant's names; the Registrar had not cancelled it. With no other title exhibited, the Court could not identify what 'registration' the Applicant wanted restored, rendering the prayer speculative and unmerited.

p. 8

Legal principles established

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  • The Land Registrar has no power to cancel a title to land; his powers are limited to rectification of errors, mistakes or omissions under Section 79(2) of the Land Registration Act where fraud or lack of proper care is established
  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • Where a clear procedure exists for addressing a grievance, that procedure should be followed

Court orders

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  1. 1.The Notice of Motion dated 4th August 2022 is dismissed
  2. 2.Costs of the application to the Respondents and the Interested Party

Authorities

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Legislation

  • Land Registration ActSection 79(2)
  • Land Registration ActSection 80(1)

Cases cited (6)

  • Municipal Council Of Mombasa –v- Republic & Umoja Consultants Ltd
    Civil Appeal No 185 of 2001

    Parameters of judicial review jurisdiction - process, not merits

  • Pastoli -v- Kabare District Local Government Council & Others
    2008 2 E.A 300

    Illegality, irrationality and procedural impropriety as grounds for judicial review

  • Council Of Civil Unions -v-
    1985 AC 2

    Cited with approval in Pastoli on grounds of judicial review

  • An Application By Bukoba Gymkhana Club
    1963 E.A. 478

    Cited with approval in Pastoli on grounds of judicial review

  • Speaker Of National Assembly -v- Njenga Karume
    2008 1 KLR 425

    Clear procedure prescribed must be followed

  • Kenya National Examination Council v- R. Exparte Geoffrey Gathenji Njoroge & Others
    Court of Appeal Civil Appeal No 266 of 1996 [1997 eKLR]

    Scope of certiorari, prohibition and mandamus

Jurisdiction invoked
Judicial review jurisdiction of the High Court/Environment and Land Court under the Law Reform Act and Article 47 of the Constitution (orders of certiorari, prohibition and mandamus)

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 Land Registrar – Busia County & another; Mbingi (Interested Party); Egesa (Exparte Applicant)", Case Analysis (2023). Environment and Land Judicial Review Case E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20078/eng@2023-09-28

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