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ELCStruck OutJudicial Review E004 of 2022· [2023] KEELC 20402 (KLR)

Republic v Land Registrar, Ukwala & another; Otayi (Interested Party); Yamo (Exparte Applicant)

Environment and Land Court of Kenya
5 October 2023
AKA. Y. Koross
2,202 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Siaya court struck out a landowner's challenge to the cancellation of his titles because he filed seven years too late.

What this practically means

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Executive summary

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The ex parte applicant, Wycliff Yamo Yamo, sought judicial review orders of certiorari to quash the Land Registrar, Ukwala's cancellation of his titles over land parcels Uholo/Rambula/512 and 513, and mandamus compelling cancellation of new titles 913, 915, 916 and 917 and restoration of the suit parcels. He contended the registrar had no power to cancel titles without a court order, acted without notice or hearing contrary to Article 47 and the Fair Administrative Action Act, and acted maliciously. The respondent, represented by the Attorney General, filed no opposing documents; the interested party also filed no response. Counsel for the applicant relied on Geothermal Development Company and Republic ex parte Yosabia Kerubo Manyura to argue that only a court may cancel registrations under Section 80(1) of the Land Registration Act. The court framed four issues, the first being whether the proceedings were statute-barred. It held that Section 9(3) of the Law Reform Act and Order 53 Rule 2 mandatorily require an application for leave to seek certiorari within six months of the decision. The decision was made on October 12, 2015 but leave was sought on November 23, 2022. Although sympathetic to the applicant's claim of ignorance of the cancellation, the court held its hands were tied, found the motion incompetent, struck it out with no orders as to costs, and observed the applicant could pursue other legal avenues.

Key legal issues

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01

Whether the judicial review proceedings were statutory barred

Holding

Yes - the leave application filed on November 23, 2022 was outside the six-month limitation period prescribed by Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules

Reasoning

The respondent's decision cancelling the titles was rendered on October 12, 2015. Section 9(3) of the Law Reform Act, replicated in Order 53 Rule 2, is couched in mandatory terms and bars grant of leave for certiorari more than six months after the decision. Although the applicant claimed ignorance of the decision until November 9, 2022, the court held it was constrained despite sympathy for him.

p. 5

Legal principles established

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  • An application for leave to apply for certiorari must be made not later than six months after the date of the decision sought to be quashed, and this statutory period cannot be extended

Court orders

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  1. 1.The notice of motion dated March 16, 2023 struck out as incompetent
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 40, 43, 47
  • Land Registration ActSections 14, 24(a), 25(1), 26(1), 79, 80(1)
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 53 Rules 1, 2 and 7; Order 49
  • Fair Administrative Action ActSection 4(1), (2) and (3)
  • Law Reform ActSections 8, 9(2) and 9(3)
  • Limitation of Actions ActCap 22

Cases cited (7)

  • Geothermal Development Company Limited vs. Attorney General & 3 others
    [2013] eKLR

    Article 47 enshrines the right to fair administrative action; a party must know the case against it and be given opportunity to respond

  • Republic vs. Chief Land Registrar & another ex parte Yosabia Kerubo Manyura
    [2018] eKLR

    Registrar's rectification powers under Section 79 are limited; only the court under Section 80(1) may direct cancellation of a registration

  • Republic v Kenya National Highways Authority & 2 others ex-parte Amica Business Solutions Limited
    [2016] eKLR

    Six-month limitation in Order 53 Rules 2 and 7 applies only to specific formal orders, not other decisions

  • The Goldenberg Affair Exparte Hon. Mwalulu and Others
    HCMA No. 1279 of 2004 [2004] eKLR

    Limitation period applies only to specific formal orders mentioned in Order 53 Rules 2 and 7

  • Republic vs The Commissioner of Lands Ex-parte Lake Flowers Limited
    H.C. Misc. Application No. 1235 of 1998

    Six-month limitation applies only to specific formal orders, not contents of a private letter

  • Wilson Osolo v John Ojiambo Ochola & Another
    1995 eKLR

    Time limited by statute (Law Reform Act) cannot be extended via Civil Procedure Rules

  • Republic vs. Director of Land Adjudication and Settlement & 2 Others
    [2017] eKLR

    Section 9(3) Law Reform Act and Order 53 Rule 2 are mandatory on the six-month certiorari period

Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act; Articles 27, 40, 43 and 47 of the Constitution invoked by the applicant

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, Ukwala & another; Otayi (Interested Party); Yamo (Exparte Applicant)", Case Analysis (2023). Judicial Review E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20402/eng@2023-10-05

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