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ELCDismissedJudicial Review Application (Notice of Motion dated 21st September 2022, amended 27th February 2023)· [2024] KEELC 6499 (KLR)

Republic v County Land Registrar, Kisumu County & another; Onditi & another (Interested Parties); Ojwang (Exparte Applicant) (Judicial Review E003 of 2022) [2024] KEELC 6499 (KLR)

Environment and Land Court of Kenya
3 October 2024
5,589 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed land titles can't be cancelled without proper notice, but refused to restore a title possibly fraudulently obtained, sending the dispute to a civil suit.

What this practically means

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Executive summary

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The Applicant, Jacob Owiny Ojwang, sought judicial review orders of certiorari, mandamus and prohibition against the 1st Respondent's revocation of his title to land parcel Kisumu/Kogony/6110, a subdivision of Kisumu/Kogony/1746 registered in the name of the 1st Interested Party on first registration in 1992. The Applicant claimed to be an innocent purchaser for value from the 2nd Interested Party and complained that his title was cancelled without notice or a hearing, violating Article 40 of the Constitution and section 79 of the Land Registration Act. The Respondents maintained the revocation fell within their statutory mandate; the 1st Interested Party asserted the parent plot was fraudulently transferred and subdivided without her knowledge, that the Applicant's documents were fraudulent, and that judicial review was an inappropriate forum for the dispute. The court framed a single issue: whether the Applicant had made a case for the orders sought. It reviewed the law that judicial review concerns process, not merits, and is discretionary. Although the court found the revocation was without jurisdiction because the notice did not meet section 79(2)(b) of the Land Registration Act and Part XIV of the Land Registration (General) Regulations, 2017, it declined to quash the revocation, hold mandamus, or issue prohibition. Prima facie evidence of fraudulent acquisition of the parent plot meant the Applicant's title might be a nullity, and that contested factual question required a normal civil suit with oral evidence. The Notice of Motion was dismissed with each party bearing its own costs, and the parties were directed to an appropriate civil forum.

Key legal issues

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01

Whether the Applicant made a case for the judicial review orders of certiorari, mandamus and prohibition

Holding

The application was dismissed. The court found the revocation was without jurisdiction but exercised its discretion against granting the remedies because the validity of the Applicant's title depended on contested facts determinable only in a civil suit

Reasoning

The court found the notice preceding cancellation did not satisfy section 79(2)(b) of the Land Registration Act and Part XIV of the Land Registration (General) Regulations, 2017, so the Registrar acted without jurisdiction. However, judicial review remedies are discretionary, and the 1st Interested Party had placed prima facie evidence that the parent plot was fraudulently acquired. Determining fraud and bona fide purchaser status requires viva voce evidence, which judicial review cannot accommodate. The court therefore declined all three remedies and directed the parties to a normal civil suit.

p. 11
02

Whether the 1st Respondent had power to revoke the Applicant's registered title

Holding

No; the Registrar had no jurisdiction to cancel a title without a court order and the notice served did not comply with section 79(2)(b) of the Land Registration Act, 2012

Reasoning

The court accepted the Applicant's submission that the revocation was ultra vires. The notice served before cancellation failed to meet the statutory requirements of section 79(2)(b) of the Land Registration Act, 2012 and Part XIV of the Land Registration (General) Regulations, 2017. On that basis the court would have quashed the revocation, but for the discretionary bar arising from the underlying fraud dispute.

p. 10
03

Whether judicial review was the appropriate forum for the land ownership dispute

Holding

No; the dispute over fraudulent acquisition and the Applicant's bona fide purchaser status must be determined in an ordinary civil suit with oral evidence

Reasoning

Relying on Sanghani Investment, Kisimani Holdings, Zacharia Kahuthu and related authorities, the court held that judicial review addresses process, not merits, and is ill-equipped for disputed facts requiring cross-examination. Since the root of the Applicant's title was contested, granting the orders would leave serious conflicting issues of fact unresolved and spawn future conflicts.

p. 8

Legal principles established

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  • The Land Registrar has no jurisdiction to cancel a registered title without a court order, and any notice served must meet the requirements of section 79(2)(b) of the Land Registration Act and Part XIV of the Land Registration (General) Regulations, 2017
  • Judicial review is concerned with the decision-making process, not the merits; where contested issues of fact require determination, the court should decline the discretionary remedies and leave parties to an ordinary civil suit

Court orders

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  1. 1.The Applicant's amended Notice of Motion dated 27th February 2023 is dismissed
  2. 2.Each party shall bear its own costs of the suit
  3. 3.Parties directed to take the dispute to an appropriate forum, a normal civil suit, where the validity of the Applicant's title can be determined with finality

Authorities

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Legislation

  • Law Reform ActSections 8 and 9
  • Civil Procedure RulesOrder 53
  • Constitution of Kenya, 2010Article 47; Article 40
  • Land Registration ActSection 79, including section 79(2)(b)
  • Land Registration (General) RegulationsPart XIV

Cases cited (13)

  • Dande & 3 others v. Inspector General, National Police Service & 5 others (Petition 6 (E007), 4(E005) & 8 (E010) of 2022 (Consolidated))
    [2023] KESC 40 (KLR)
  • Municipal Council of Mombasa v. Republic & another
    [2002] eKLR
  • OJSC Power Machines Limited, Trans Century Limited, and Civicon Limited (Consortium) v. Public Procurement Administrative Review Board Kenya & 2 others
    NRB CA 28 of 2016, [2017] eKLR
  • Kenya National Examination Council v. Republic, Ex-parte Geoffrey Gathenji Njoroge & 9 others
    Civil Appeal No. 266 of 1996
  • Republic v Cabinet Secretary, Ministry of Interior & Co-ordination of National Government & 2 others Ex-Parte Kisimani Holdings Ltd
    [2015] eKLR
  • Sanghani Investment Limited vs. Officer in Charge Nairobi Remand and Allocation Prison
    [2007] 1 EA 354
  • Republic v. Zacharia Kahuthu & another (Sued as Trustees and on Behalf of and as Officials of the Kenya Evangelical Lutheran Church); Johaness Kutuk Ole Meliyio & 2 others (Interested Parties) Ex parte Benjamin Kamala & another
    [2020] eKLR
  • Republic v National Transport & Safety Authority & 10 others Ex parte James Maina Mugo
    (2015) eKLR
  • Seventh Day Adventist Church (East Africa) Limited v Permanent Secretary, Ministry of Nairobi Metropolitan Development & another
    [2014] eKLR
  • Republic v Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji
    [2014] eKLR
  • Republic v Registrar of Societies & 3 others ex parte Lydia Cherubet & 2 others
    [2016]
  • Harrison Kiambuthi Wanjiru and another v. District Land Registrar and 3 others
    Thika E.L.C Suit No. 40 of 2019
  • Katende vs Haridar & Company Limited
    (2008) 2 E.A. 173
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules, pursuant to leave granted on 5th September 2022

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, "Republic v County Land Registrar, Kisumu County & another; Onditi & another (Interested Parties); Ojwang (Exparte Applicant) (Judicial Review E003 of 2022) [2024] KEELC 6499 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 21st September 2022, amended 27th February 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6499/eng@2024-10-03

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