Republic v Land Registrar Murang’a & another; Kamonye (Exparte Applicant) (Judicial Review E001 of 2023) [2024] KEELC 4892 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Probate Court at Gatundu issued an order for cancellation of the Applicant's titles
The Probate Court expressly declined to make any orders touching on the suit property because the revocation summons did not pray for cancellation of the title; the suit property was also not included in the revoked confirmed grant, so the Registrar acted on a misinterpretation of the order.
The court perused the ruling of 9th January 2023 and found the probate court expressly stated it would not make orders touching the parcel because parties are bound by their pleadings and no prayer for cancellation was made. The confirmed grant only distributed Mhasibu Housing shares, not the suit land. The court order relied on did not therefore cover the Applicant's title, and the Registrar misinterpreted it.
Whether the 1st Respondent had power to cancel the Applicant's title
The Land Registrar acted ultra vires and in excess of jurisdiction; the power to cancel title for fraud or mistake rests with the courts under Section 80 of the Land Registration Act, and the Registrar may only rectify the register under Section 79.
Section 79 confines the Registrar to rectification in limited cases (formal matters, consent, resurvey, updating the register). Section 80 vests power to order cancellation or amendment of registrations obtained by fraud or mistake in the Court. Citing Republic v Land Registrar Mombasa Ex-parte Alladina Properties and Republic v Land Registrar Taita Taveta, the court held a unilateral revocation of title by the Registrar without a valid court order is without jurisdiction.
Whether certiorari and mandamus were merited
Certiorari was merited because the decision was made in excess of jurisdiction and without a hearing; mandamus was merited to compel restoration of the register, though restrictions on the subdivisions were to be restored pending a suit testing the legality of the Applicant's title.
Certiorari lies where a decision is made without or in excess of jurisdiction or in breach of natural justice. Mandamus compels performance of a public duty. The Registrar's cancellation was ultra vires and unprocedural, so both orders were warranted. However, since the Applicant's chain of title was tainted by intermeddling, the court restored the restrictions previously placed on the property and its subdivisions until a proper suit determines title legality.
Legal principles established
#- The Land Registrar has no power to revoke or cancel a certificate of title; the power to cancel title for fraud or mistake is vested in the courts, and the Registrar may only rectify the register under Section 79 of the Land Registration Act.
- A public officer complying with a non-existent court order acts ultra vires and in excess of jurisdiction.
- Cancellation of a title without notice to the affected proprietor contravenes the audi alteram partem rule of natural justice.
Court orders
#- 1.Order of certiorari removing into the court and quashing the 1st Respondent's decision cancelling/revoking the title deed for land parcel MITUBIRI/WEMPA/BLOCK-I/5809
- 2.Order of mandamus compelling the Respondents to restore the Applicant in the Land Register and all relevant documents held at Murang'a Lands Registry as registered and absolute proprietor of the suit property
- 3.Restriction Orders earlier placed on the suit property Mitubiri/Wempa/Block 1/5809 and its resultant subdivisions be and are hereby restored and remain in force until further orders of the Court
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Order 53 Rule 3 of the Civil Procedure Rules, 2010 (Judicial Review)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Republic v Land Registrar Murang’a & another; Kamonye (Exparte Applicant) (Judicial Review E001 of 2023) [2024] KEELC 4892 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 14th August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4892/eng@2024-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.