Republic v Regional Surveyor-Nyanza Region & another; Genga & 4 others (Exparte Applicants); Odera & 6 others (Interested Parties) (Judicial Review Application E004 of 2023) [2024] KEELC 6573 (KLR)
The bottom line
#The Environment and Land Court in Kisumu dismissed a clan's bid to stop officials from fixing fraudulent land records, confirming officials may expunge titles already cancelled by a court.
What this practically means
#Executive summary
#Key legal issues
#Whether prohibition should issue against the 1st Respondent's letter of 14th April 2023
Refused. The prayer was too general, the letter was a notice and invitation to be heard rather than a decision, and the court cannot prohibit cancellation and expungement of titles already lawfully cancelled for fraud.
The letter of 14th April 2023 had several components - notification of anomalies and invitation to a meeting. The Applicants were not authorised by all affected owners and not all parcels in the Diagram Sheet were the subject of the earlier suit. The titles arising from the fraudulent subdivision of Kisumu/Kogony/4617 were already cancelled by the ELC court, so the Respondents lawfully may cancel and expunge them from the registers and maps to allow a proper survey and adjudication.
Whether mandamus should issue compelling ratification of the clan's distribution of the land
Refused. No valid survey, demarcation or adjudication of the suit property exists upon which distribution could be based, and no proposed mode of distribution was placed before the court.
Both this court and the court in Kisumu ELC No. 146 of 2012 found the survey and subdivision fraudulent, so distribution cannot proceed on that basis. Enforcement of the cancellation orders lies in the suit where they were made. The Interested Parties admitted they were yet to agree on a distribution, so there was nothing for the Respondents to ratify.
Whether certiorari should quash the alleged decision of 14th April 2023
Refused. There were no proceedings or decision made on 14th April 2023 and no evidence that the Applicants' parcels had been expunged from the Diagram Sheet.
The 14th April 2023 letter was merely a notice of detected anomalies and an invitation to be heard. The published Registry Index Maps/Diagrams still contain the Applicants' properties save for the 1st Edition, and the Respondents denied expungement, stating they could not act without notice to stakeholders. The preconditions for certiorari were therefore not established.
Whether the suit property (Kogony C-18 Scheme) was ever validly surveyed and registered
It was never validly surveyed; the purported survey as part of Kisumu/Kogony/4617 was unknown in law and fraudulent, so the extent of the clan's land and any encroachment on compulsorily acquired land can only be determined in a civil suit.
The suit property was never declared an adjudication section nor surveyed, so its dimensions were unknown. Registering it as part of a private 0.48 Ha parcel was legally impossible. The resulting subdivisions totalled over 38 Ha, exceeding both the parent parcel and the estimated 8 Ha strip, making encroachment on compulsorily acquired land possible, but resolving which parcels overlap requires evidence unsuitable for judicial review.
Legal principles established
#- The 1st Respondent has no power under the Land Registration Act, 2012 and the Survey Act (Cap 299) to expunge a land parcel from a Registry Index Map/Diagram unless the title for such parcel has been lawfully cancelled
- Respondents have power to cancel land parcels from land registers and expunge them from Registry Index Maps/Diagrams where a court has cancelled the titles
- An unsurveyed and unregistered piece of land belonging to a group of persons cannot lawfully be surveyed and registered as part of an existing parcel belonging to another person
- Judicial review is concerned with the decision-making process, not the merits, and is ill-equipped to resolve contested matters of fact requiring viva voce evidence
- Judicial review is a discretionary remedy which the court may refuse even where grounds exist
Court orders
#- 1.The Applicants' Notice of Motion application dated 31st May 2023 is dismissed
- 2.Each party shall bear its own costs
- Jurisdiction invoked
- Judicial review under sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules, by leave granted on 17th May 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Regional Surveyor-Nyanza Region & another; Genga & 4 others (Exparte Applicants); Odera & 6 others (Interested Parties) (Judicial Review Application E004 of 2023) [2024] KEELC 6573 (KLR)", Case Analysis (2024). Kisumu ELC Judicial Review No. E003 of 2023 (Judicial Review application arising from Notice of Motion dated 31st May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6573/eng@2024-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.