Republic v District Land Registrar Narok & another; Koini (Exparte Applicant) (Environment and Land Judicial Review Case E001 of 2024) [2024] KEELC 6544 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the removal of the caution without hearing the cautioner amounted to illegality and procedural impropriety warranting judicial review
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.
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.
Which judicial review remedies were appropriate
Certiorari and prohibition issued; mandamus was not appropriate as the impugned decision had already been made.
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.
Legal principles established
#- 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
#- 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.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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.