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Case Brief · caselaw.co.ke
ELCDismissedJudicial Review Application 14 of 2020· [2023] KEELC 20275 (KLR)

Republic v County Land Registrar, Kisii; Bosire & another (Interested Parties); Masese (Exparte)

Environment and Land Court
27 September 2023
1,920 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 quash a title cancellation, ruling land ownership disputes must be fought through an ordinary suit.

What this practically means

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Executive summary

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The ex parte applicant, Ogembo Masese, moved the Court by judicial review seeking certiorari to quash a decision of the Land Registrar, Kisii dated 4 August 2020, by which the Registrar endorsed on a District Land Surveyor's report that title to West Kitutu/Bogusero/5204 was 'cancelled' as an irregular subdivision. The applicant contended he was the registered owner, that the Registrar had no jurisdiction to cancel title, and that he was neither heard nor party to the boundary dispute proceedings that preceded the endorsement. The Registrar opposed, deposing that parcels 5203 and 5204 were irregularly added to a sequential subdivision of parcel 4843 and that no title deeds for them issued from the Lands office. The 1st interested party, David Bosire, said he was wrongly sued since parcel 3642 belongs to his wife, Beatrice Kemunto Bosire, the complainant in the boundary dispute. The 2nd interested party did not participate. The court held that judicial review is a discretionary remedy unsuitable where ownership of land is contested; the surveyor's report and the Registrar's records identified the 2nd interested party, not the applicant, as proprietor of the suit land, revealing an ownership dispute resolvable only in an ordinary suit. The court also agreed the 1st interested party was wrongly joined. The motion was dismissed with costs to the respondent and the interested parties, with liberty to pursue an ordinary suit.

Key legal issues

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01

Suitability of judicial review where ownership of land is contested

Holding

Judicial review is discretionary and inappropriate where there is contention on ownership of land; such disputes require an ordinary suit

Reasoning

The court held that ownership questions require in-depth examination of evidence that judicial review proceedings cannot accommodate. An ordinary suit allows parties to present evidence and enables the court to determine the rightful proprietor. Since the ex parte applicant and the 2nd interested party both claim proprietorship, the matter could not be resolved in judicial review.

p. 3
02

Existence of an ownership dispute between the ex parte applicant and the 2nd interested party

Holding

The surveyor's report and the Registrar's records identified the 2nd interested party, not the ex parte applicant, as proprietor of the suit land, evidencing an ownership dispute

Reasoning

The District Land Surveyor's report showed the 2nd interested party was recognized as proprietor of the suit land and was the person invited to the boundary dispute. The Registrar's endorsement cancelling the title was understood to target the 2nd interested party's title. The ex parte applicant's own affidavit confirmed he was told the land belongs to the 2nd interested party.

p. 3
03

Wrongful joinder of the 1st interested party

Holding

The 1st interested party was wrongly sued as he is not the proprietor of parcel no 3642; the proprietor is his wife, Beatrice Kemunto Bosire

Reasoning

The 1st interested party deposed that parcel no 3642 belongs to his wife and that he did not contribute to the cancellation of the ex parte applicant's title. The court agreed that the correct party to join was Beatrice Kemunto Bosire, the actual proprietor of the parcel in the boundary dispute.

p. 4

Legal principles established

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  • Disputes over ownership of land are not suitable for judicial review and must be determined by ordinary suit where parties can present evidence

Court orders

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  1. 1.The judicial review motion is dismissed
  2. 2.Costs awarded to the respondent and the interested parties
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court (orders of certiorari)

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 County Land Registrar, Kisii; Bosire & another (Interested Parties); Masese (Exparte)", Case Analysis (2023). Judicial Review Application 14 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20275/eng@2023-09-27

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