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ELCPartially AllowedJudicial Review (Notice of Motion dated 4th March, 2024)· [2024] KEELC 6544 (KLR)

Republic v District Land Registrar Narok & another; Koini (Exparte Applicant) (Environment and Land Judicial Review Case E001 of 2024) [2024] KEELC 6544 (KLR)

Environment and Land Court
8 October 2024
2,636 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court has ruled that land registrars cannot remove a caution on your property without first hearing you, and restored a wife's caution protecting her family's interest.

What this practically means

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Executive summary

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The ex parte applicant, the first wife of the registered proprietor of L.R. Cis-Mara/Ololulunga/101, lodged a caution on 4th January, 2024 to protect her beneficial interest and that of her children against an intended subdivision. The 1st respondent summoned her to a hearing on 31st January, 2024 on the removal of the caution; being unwell and on bed rest per a medical report of 25th January, 2024, her advocate sought a deferral, and the hearing was moved to 16th February, 2024. Despite this, the 1st respondent removed the caution without giving her an opportunity to be heard. She moved the court by notice of motion dated 4th March, 2024 under sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules seeking certiorari, mandamus and prohibition. The application was unopposed, but the court satisfied itself on merit. Applying Pastoli v Kabale District and Municipal Council of Mombasa v Republic, the court found the decision tainted with illegality and procedural impropriety: the registrar acted without jurisdiction contrary to section 73 of the Land Registration Act by denying the applicant a fair hearing. Relying on Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge, the court declined mandamus, since mandamus cannot quash a decision already made, but granted certiorari to quash the removal of the caution and prohibition against its implementation, and awarded costs to the applicant, to be borne by the respondents. Judgment delivered on 8th October, 2024 by Mbogo C.G., J.

Key legal issues

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01

Whether the removal of the caution without hearing the cautioner amounted to illegality and procedural impropriety warranting judicial review

Holding

Yes. The 1st respondent acted without jurisdiction and in abuse of power by removing the caution without giving the applicant the opportunity to be hearing required by section 73(4) of the Land Registration Act, after having deferred the hearing to 16th February, 2024.

Reasoning

The court applied the Pastoli test of illegality, irrationality and procedural impropriety. The applicant lodged a caution on 4th January, 2024; the registrar deferred the removal hearing to 16th February, 2024 on account of the applicant's illness, but proceeded to remove the caution before that date. Removal without affording the cautioner a hearing contravened section 73 of the Land Registration Act and the rules of natural justice, amounting to procedural impropriety and acting without jurisdiction.

p. 5
02

Which judicial review remedies were appropriate

Holding

Certiorari and prohibition issued; mandamus was not appropriate as the impugned decision had already been made.

Reasoning

Following Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge, the court noted that mandamus compels performance of a public duty but cannot undo a decision already taken; only certiorari can quash such a decision. Since the registrar had already removed the caution, certiorari quashed that decision and prohibition barred its implementation, while mandamus was unnecessary and unsuitable.

p. 5

Legal principles established

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  • A registrar who removes a caution without giving the cautioner an opportunity to be heard, contrary to section 73 of the Land Registration Act, acts without jurisdiction and the removal is liable to be quashed
  • Mandamus is the wrong remedy where a public duty has been wrongfully performed, since mandamus cannot undo what has already been done; only certiorari can quash a decision already made

Court orders

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  1. 1.An order of certiorari to remove and quash the decision of the 1st respondent to remove the caution entered by the applicant on 4th January, 2024 in respect of L.R. Cis-Mara/Ololulunga/101
  2. 2.An order of prohibition to forbid the 1st respondent from implementing the decision to remove the caveat and from dealing in any way with the property Cis-Mara/Ololulunga/101
  3. 3.Costs awarded to the ex parte applicant, to be borne by the respondents
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act, Cap 26; Order 53 Rules (3) and (4) of the Civil Procedure Rules; Section 3A of the Civil Procedure 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, "Republic v District Land Registrar Narok & another; Koini (Exparte Applicant) (Environment and Land Judicial Review Case E001 of 2024) [2024] KEELC 6544 (KLR)", Case Analysis (2024). Judicial Review (Notice of Motion dated 4th March, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6544/eng@2024-10-08

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