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ELCDismissedKisumu ELC Judicial Review No. E003 of 2023 (Judicial Review application arising from Notice of Motion dated 31st May 2023)· [2024] KEELC 6573 (KLR)

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)

Environment and Land Court
3 October 2024
11,027 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~44 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By a Notice of Motion dated 31st May 2023, five members of Kisumu Kogony Clan sought judicial review orders of prohibition, mandamus and certiorari directed at the Director of Surveys and the Land Registrar, following the 1st Respondent's letter of 14th April 2023 flagging anomalies in Kisumu/Kogony Registration Section Diagram Sheet No. 18 and an intention to expunge certain parcels. The Applicants sought to enforce the judgment in Kisumu ELC No. 146 of 2012 (Christabel Achieng Odera & others v. Christopher Juma Akinyi & others), which declared the Kogony C-18 Scheme community ancestral land and cancelled titles arising from a fraudulent survey. The Interested Parties, successful litigants in that suit, supported the reliefs but sought them in their favour. The Respondents opposed, contending the letter was merely a notice of anomalies - subdivisions of Kisumu/Kogony/4617 (0.48 Ha) yielding over 900 parcels exceeding 38 Ha - that no decision had been made, that the C-18 Scheme did not exist in survey records, and that many parcels overlapped land compulsorily acquired under Gazette Notice No. 3400 of 1976. The court, applying settled principles that judicial review concerns process rather than merits and is ill-suited to contested facts, found the suit property was never validly surveyed and that the purported survey through a private parcel was fraudulent and unknown in law. Prohibition was refused as too general and because the Respondents may lawfully expunge parcels whose titles were already judicially cancelled; mandamus was refused as there was no valid survey or agreed distribution to ratify; certiorari was refused because no decision was made on 14th April 2023 and no expungement was proved. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether prohibition should issue against the 1st Respondent's letter of 14th April 2023

Holding

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.

Reasoning

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.

p. 17
02

Whether mandamus should issue compelling ratification of the clan's distribution of the land

Holding

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.

Reasoning

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.

p. 18
03

Whether certiorari should quash the alleged decision of 14th April 2023

Holding

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.

Reasoning

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.

p. 18
04

Whether the suit property (Kogony C-18 Scheme) was ever validly surveyed and registered

Holding

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.

Reasoning

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.

p. 16

Legal principles established

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  • 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

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  1. 1.The Applicants' Notice of Motion application dated 31st May 2023 is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Law Reform ActSections 8 and 9
  • Civil Procedure RulesOrder 53
  • Constitution of Kenya, 2010Article 47
  • Land Registration ActSections 18, 19 and 26
  • Survey ActChapter 299 Laws of Kenya

Cases cited (18)

  • PAK & Another v. A.G & 3 Others
    Petition No. E009 of 2020
  • Republic v. Joe Mucheru, Fred Matiangi, the A.G & Others
    J.R No. E1138 of 2020
  • Republic v. Kenya National Examination Council Ex Parte Gathenji & Others
    Civil Appeal No. 266 of 1996
  • Dina Management Limited v. County Government of Mombasa & 5 Others
    Petition No. 8 (E010) of 2021
  • George Kamau Macharia v. Dexka Limited
    [2019] eKLR
  • Republic v. Anti-Counterfeit Agency & Director of Public Prosecutions Ex-parte FRM (EA) Packers Limited & Another
    [2017] eKLR
  • 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; 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]
  • Christabel Achieng Odera & others vs. Christopher Juma Akinyi & others
    Kisumu ELC No. 146 of 2012
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

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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 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

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