Republic v Naivasha District Land Registrar & 3 others; Mbugua (Exparte Applicant) (Environment and Land Judicial Review Case 1 of 2023) [2024] KEELC 467 (KLR)

The respondents argued the application, filed over six months after the decision of 21/05/2020, was time-barred. The court examined section 9(3) of the Law Reform Act and Order 53 rule 2 of the Civil Procedure Rules and held that the six-month restriction is confined to judgments, orders, decrees, convictions or other proceedings of courts or quasi-judicial bodies. The impugned decision was an administrative action, so the limitation did not apply.

Section 19(1) of the Land Registration Act requires notice to owners and occupiers of adjoining land of an intention to fix boundaries. The applicant, as registered proprietor, had a legitimate expectation of being heard before steps affecting her interest were taken. The respondents neither notified her of the intended amendment nor gave her an opportunity to object, breaching Articles 47 and 50 of the Constitution and depriving her of property without a hearing.

Applying the principles in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge, the court held that certiorari quashes decisions tainted with illegality, irrationality or procedural impropriety, while mandamus compels performance of a public duty imposed by statute. Because the decision breached the applicant's right to be heard, certiorari was warranted; and the respondents had a statutory duty to reinstate the map and reopen the register.

The court explained that prohibition is directed at preventing a tribunal or body from continuing proceedings in excess of jurisdiction or in contravention of the law, but it is powerless against a decision already made. Since the impugned decision was already made and there was no evidence of contemplated future unlawful action, a perpetual prohibition could not be contemplated or granted.