Republic v Busia County Land Registrar; Emurudu & another (Exparte); Emomeri & another (Interested Parties) (Environment and Planning Judicial Review E001 of 2023) [2024] KEELC 5202 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Land Registrar to cancel titles
The Registrar acted without jurisdiction; under the amended Section 79 his powers are limited to rectifying mistakes, errors or omissions, and cancellation of a title is reserved to the Court under Section 80
The court contrasted Section 79 (rectify) with Section 80 (rectification by order of Court, using 'cancel'), reasoning the legislature could not have intended to confer cancellation power on the Registrar without saying so expressly. Black's Law Dictionary defines rectification as correcting errors. Ample jurisprudence (Emfil, Kuria Greens) confirms the Registrar cannot cancel titles.
Non-compliance with the statutory 90-day notice requirement
Even assuming Section 79 applied, the Registrar was required to give 90 days' written notice but gave only about 16 days between notice and hearing
Section 79(2) as amended by Legal Notice No. 28 of 2016 requires a written notice of ninety days before alteration affecting a proprietor's title. The Registrar issued notice on 31st July 2023, heard the matter on 16th August 2023, and communicated cancellation on 23rd August 2023, all contrary to the statute. The Applicants' presence did not cure the want of jurisdiction.
Availability of Certiorari and Prohibition
Both remedies were merited: Certiorari to quash the decision made without or in excess of jurisdiction, and Prohibition because the surrender notice still hung over the Applicants
Relying on Kenya National Examination Council v Republic, certiorari issues where a decision is made without or in excess of jurisdiction, and prohibition looks to the future to forbid an inferior body from continuing proceedings in excess of jurisdiction. The Registrar's notice requiring surrender of titles within 14 days remained operative.
Legal principles established
#- A Land Registrar has no jurisdiction to cancel a title to land; cancellation of title is the sole prerogative of the Court under Section 80 of the Land Registration Act
- The Registrar's rectification powers under Section 79 are confined to errors, mistakes or omissions not materially affecting a proprietor's title, and alteration affecting title requires consent or fraud by the proprietor plus 90 days' written notice
- Judicial review concerns the decision-making process, not the merits of the decision
Court orders
#- 1.An order of Certiorari quashing the proceedings and decision of the Busia County Land Registrar made on 16th August 2023 and the Notice of Intention to rectify the register in respect of titles No South Teso/Asinge/1719 and 1721 dated 23rd August 2023
- 2.An order of Prohibition prohibiting the Busia County Land Registrar from enforcing the decision of 16th August 2023 in respect of the two titles
- 3.The Respondent and the 1st, 2nd, 3rd, 6th, 10th, 13th, 16th and 17th Interested Parties to meet the Applicants' costs
- 4.Parties acting in person to be notified to collect copies of the judgment from the Deputy Registrar
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court under Order 53 of the Civil Procedure Rules; Article 47 of the Constitution on fair administrative action noted
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Busia County Land Registrar; Emurudu & another (Exparte); Emomeri & another (Interested Parties) (Environment and Planning Judicial Review E001 of 2023) [2024] KEELC 5202 (KLR)", Case Analysis (2024). Judicial Review Application dated 15th September 2023 (Busia High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5202/eng@2024-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.