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ELCDismissedJudicial Review Notice of Motion dated 27/2/2023 (leave granted 20/2/2023)· [2024] KEELC 5670 (KLR)

Chivatsi v Chief Land Registrar, Kilifi County & another; Vue & 3 others (Interested Parties) (Environment and Land Judicial Review Case 3 of 2023) [2024] KEELC 5670 (KLR)

Environment and Land Court
31 July 2024
2,943 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 Malindi Environment and Land Court dismissed a bid to reverse a land title reversion, ruling the Land Registrar lawfully executed a valid court decree.

What this practically means

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Executive summary

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The Ex-parte Applicant, registered owner of Kilifi/Viambani/355 and 356, sought an order of certiorari to quash the 1st Respondent's decision, evidenced by a reversion instrument registered on 12/1/2023, consolidating the parcels into Kilifi/Vyambani/92 in favour of the 1st and 2nd Interested Parties. He contended the decision was made without notice or a hearing, rested on a non-existent decree, and violated Articles 47 and 50 of the Constitution, Sections 4 and 9 of the Fair Administrative Action Act and Sections 9 and 10 of the Public Officer Ethics Act. The 1st Respondent (Land Registrar, Kilifi County) explained through J.B Oketch that the title was originally subdivided in 2013, that a judgment of 18/9/2015 and decree re-issued on 22/8/2022 in Malindi ELC 184 of 2013 were served, verified with the court's Deputy Registrar, and executed by rectifying the register. Interested Parties opposed the application in varying degrees, the 4th Interested Party objecting that his plot 359 was erroneously included in the notice. The court, applying Pastoli v Kabale District Local Government Council, held that judicial review examines the decision-making process, not the merits, and found the Registrar acted in compliance with a valid court decree under Section 80 of the Land Registration Act; Section 76(1) did not apply. It noted the 20/1/2023 dismissal order was not shown to have been served on the Registrar. The motion was dismissed with costs to all respondents and interested parties, though the court observed the notice should be amended to exclude Kilifi/Vyambani/359, which was not the subject of the decree.

Key legal issues

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01

Whether the impugned decision was tainted with illegality, irrationality or procedural impropriety

Holding

No; the 1st Respondent acted on a verified judgment and decree of the court, and the notice was in execution of those orders

Reasoning

The court applied the Pastoli criteria. The 1st Respondent received a judgment dated 18/9/2015 and decree re-issued 22/8/2022 in ELC 184 of 2013, verified its authenticity with the court's Deputy Registrar, and then rectified the register in line with the decree. The impugned notice was therefore lawful execution of court orders, not an ultra vires or irrational act.

p. 6
02

Whether the Applicant was denied a fair hearing under Article 47, 50 and Section 4 of the Fair Administrative Action Act

Holding

Judicial review could not succeed; the rectification was pursuant to a court order under Section 80 of the Land Registration Act rather than an independent administrative decision

Reasoning

The court held that Section 76(1) of the Land Registration Act on restrictions did not apply; the appropriate provision was Section 80, under which the court may order rectification. Since the register was rectified following a court order and in execution of a decree, the Applicant did not establish procedural unfairness warranting certiorari.

p. 6
03

Whether the notice erroneously included Kilifi/Vyambani/359 belonging to the 4th Interested Party

Holding

The land in dispute in ELC 184 of 2013 comprised plots 353-357 only, so the notice should be amended in terms of the judgment and decree

Reasoning

The 4th Interested Party, registered owner of Kilifi/Vyambani/359, showed his plot was not subject of ELC 184 of 2013. The court perused the judgment and decree and found the disputed land was Kilifi/Vyambani/92 subdivided into 353, 354, 355, 356 and 357. It found it necessary that the notice be amended accordingly, though the substantive motion was still dismissed.

p. 6

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision

Court orders

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  1. 1.The substantive judicial review notice of motion dated 27/2/2023 is dismissed with costs to all the respondents and all the interested parties
  2. 2.Costs to all the respondents and all the interested parties

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 27
  • Civil Procedure Rules, 2010Order 53 Rules 1, 2 and 3
  • Fair Administrative Action ActSections 4(3)(b), 8, 9
  • Public Officer Ethics ActSections 9, 10
  • Land Registration ActSections 76(1), 80
  • Constitution of Kenya, 2010Articles 10, 47(1), 47(2), 50(1)

Cases cited (12)

  • Timsales Limited v Harun Thuo Ndungu
    [2010] eKLR
  • Standard Resource Group Ltd v AG & 2 others
    [2016] eKLR
  • Kenya National Examination Council v Republic ex-parte Geoffrey Gathenji Njoroge & others
    Civil Appeal No. 266 of 1996, eKLR
  • Nyongesa & 4 others v Egerton University College
    [1990] eKLR
  • Cortec Mining Kenya Limited v CS, Ministry of Mining & 9 others
    [2017] eKLR
  • Peninah Nadako Kilishwa v IEBC & 2 Others
    [2015] eKLR
  • A.B & another v R.B.
    Civil Application No. 4 of 2016 [2016] eKLR
  • Republic v NGOs, ex-parte Linda Bonyo & 4 others; Philip Opiyo Sadjah & 5 others (interested parties)
    [2020] eKLR
  • Republic v Rosemary Wairimu Munene (ex-parte Applicant) v Ihururu Dairy Farmers Cooperative Society Limited
    JR Application No. 6 of 2004
  • Pastoli v Kabale District Local Government Council and Others
    (2008) 2 E.A 300
  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    [2002] eKLR - C.A Civil Appeal No. 185 of 2001
  • Republic Vs Kenya Revenue Authority Ex-parte Yaya Towers Limited
    (2008) eKLR
Jurisdiction invoked
Sections 8 and 9 of the Fair Administrative Action Act; Order 53 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010; Sections 9 and 10 of the Public Officer Ethics Act

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, "Chivatsi v Chief Land Registrar, Kilifi County & another; Vue & 3 others (Interested Parties) (Environment and Land Judicial Review Case 3 of 2023) [2024] KEELC 5670 (KLR)", Case Analysis (2024). Judicial Review Notice of Motion dated 27/2/2023 (leave granted 20/2/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5670/eng@2024-07-31

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