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ELCPartially AllowedJudicial Review Application (Notice of Motion dated 06.11.2023)· [2024] KEELC 5368 (KLR)

Republic v Land Registrar, Nakuru District & another; Nakuru War Memorial Hospital Ltd (Exparte Applicant) (Environment and Land Judicial Review Case 1 of 2024) [2024] KEELC 5368 (KLR)

Environment and Land Court
18 July 2024
3,843 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's High Court-adjacent land court confirmed a Land Registrar cannot cancel your title by gazette notice; only a court can void a registered lease.

What this practically means

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Executive summary

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Nakuru War Memorial Hospital Limited sought judicial review orders of certiorari and prohibition against Gazette Notice No. 6309 dated 19.05.2023, by which the Land Registrar, Nakuru purported to cancel the hospital's certificate of lease over Nakuru Municipality Block 11/107 on the ground that it had been issued erroneously. The Registrar contended the certificate had been issued by mistake because mandatory documents (rates and land rent clearance certificates, discharge of charge and a ground report) were never presented, and alleged non-disclosure of a charge and objections by the County Government of Nakuru to the lease extension. The court framed three issues: whether grounds for judicial review were demonstrated, entitlement to reliefs, and costs. It held that an applicant need only establish one legitimate ground. Finding that no provision of the Land Act or Land Registration Act empowers a land registrar to cancel a certificate of title, particularly on account of his own negligence, and that vested rights arise under Sections 24 and 25 of the Land Registration Act, the court concluded the notice was ultra vires, without or in excess of jurisdiction, and published in bad faith. Allegations of fraud required judicial adjudication, not administrative nullification. Certiorari issued to quash the notice; prohibition was refused as prospective relief with no threatened future action. Since the applicant succeeded on only one of two main prayers, each party was ordered to bear its own costs. Judgment delivered on 18 July 2024 by Y. M. Angima, J.

Key legal issues

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01

Whether the Land Registrar acted ultra vires in cancelling the certificate of lease via gazette notice

Holding

Yes; the cancellation was ultra vires, without or in excess of jurisdiction, and quashed by certiorari.

Reasoning

The court held that once a certificate of lease issues, rights vest under Sections 24 and 25 of the Land Registration Act. No provision of the Land Act or Land Registration Act authorises a registrar to cancel a certificate on account of his own negligence, and fraud allegations require judicial adjudication, not administrative nullification. The use of a 'loss' notice while the applicant held the certificate evidenced malice or bad faith.

p. 6
02

Whether breach of natural justice/fair administrative action was established

Holding

The court declined to determine it, since a hearing could not have legitimised an ultra vires act.

Reasoning

The court reasoned that if the registrar had no legal authority to cancel the certificate in the first place, affording a hearing would have been futile and could not confer jurisdiction. It therefore declined to examine the natural justice and fair administrative action allegations, resting its decision solely on ultra vires.

p. 5
03

Whether an order of prohibition should issue

Holding

No; prohibition is prospective and no future unlawful action was shown.

Reasoning

Relying on the Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge formulation, the court held prohibition targets ongoing or contemplated action. The impugned notice had already been published in 2023 and there was no allegation the Respondents intended further unlawful action, so prohibition was declined.

p. 7

Legal principles established

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  • A land registrar has no legal authority to revoke, cancel or nullify a certificate of lease or other title document on the basis that it was obtained through fraud or improper and unlawful means; only a competent court may cancel a title.
  • Upon issuance of a certificate of lease, legal rights accrue to the registered proprietor under Sections 24 and 25 of the Land Registration Act and the registrar cannot unilaterally cancel it.
  • An applicant for judicial review need only demonstrate at least one legitimate ground to succeed.

Court orders

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  1. 1.An order of certiorari to bring up and quash the decision of the 1st Respondent made vide Kenya Gazette Notice No. 6309 dated 19.05.2023 cancelling the certificate of lease of parcel No. Nakuru Municipality Block 11/107 in the name of Nakuru War Memorial Hospital Limited.
  2. 2.The prayer for an order of prohibition is declined.
  3. 3.Each party shall bear its own costs of the application for judicial review.

Authorities

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Legislation

  • Law Reform ActSections 8 and 9
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 27 (proviso)
  • Civil Procedure Rules, 2010Order 53 rules 1, 2 & 4; Order 53 rule 3(1) & (3)
  • Constitution of Kenya, 2010Article 47
  • Land Registration ActSections 24 and 25
  • Land Act
  • Fair Administrative Action Act

Cases cited (9)

  • Republic - v- Cabinet Secretary in-Charge of Internal Security & 3 Others ex parte Jean Eleanor Magaritis Otto
    [2015] eKLR
  • Municipal Council of Mombasa - v- Republic & Umoja Consultants Ltd
    [2002] eKLR
  • Republic - v- Naivasha District Land Registrar & Others ex parte Grace Wanjiru Ng'ang'a & 2 Others
    [2022] eKLR
  • Kuria Greens Limited - v- Registrar of Titles & Another
    [2011] eKLR
  • Republic - v- Registrar of Titles Mombasa & 2 Others ex Parte EMFIL Limited
    [2012] eKLR
  • Sabina Nyambura Githina & Another v Land Registrar, Thika Land Registry & 3 others; Real Capital Ltd (Interested Party)
    [2021] eKLR
  • Macfoy v. United Africa Co. Ltd
    [1961] 3 All E.R. 1169
  • Kenya National Examination Council - v- Republic Ex Parte Geoffrey Gathenji Njoroge & 9 Others
    [1997] eKLR
  • Hussein Janmohamed & Sons – v- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap. 26), Order 53 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act (Cap. 21)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v Land Registrar, Nakuru District & another; Nakuru War Memorial Hospital Ltd (Exparte Applicant) (Environment and Land Judicial Review Case 1 of 2024) [2024] KEELC 5368 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 06.11.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5368/eng@2024-07-18

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