Republic v Kisumu County Land Registrar & another; .Otieno & 29 others (Exparte) (Judicial Review Application E001 & E005 of 2023 (Consolidated)) [2024] KEELC 6577 (KLR)
The bottom line
#A Kisumu court blocked officials from quietly erasing land parcels from maps, but ruled that only a civil suit can cancel titles allegedly created fraudulently.
What this practically means
#Executive summary
#Key legal issues
#Whether judicial review was the proper forum for determining the legality of the applicants' titles
It was not; the underlying dispute concerns the legality of titles which requires oral evidence and can only be determined in a civil suit
The court found prima facie evidence of fraudulent subdivisions where a 1.9-hectare parcel yielded over 38 hectares. Determining fraud and title legality requires viva voce evidence and cross-examination, which judicial review on affidavits cannot accommodate. The applicants approbated and reprobated and should have filed a normal civil suit.
Whether the applicants' parcels had been expunged from the register and Registry Index Maps
No; there was no evidence of expungement from the registers, and the map relied on by the applicants was not an officially published RIM
All published editions of RIM Sheet No. 18 in evidence contained the suit properties save the 1st Edition. The drawing produced by the applicants was not an officially published map and bore no edition. The notice of a public meeting would have been unnecessary had expungement already occurred.
Whether the 2nd Respondent could lawfully expunge the parcels from the Registry Index Maps
No; the Survey Act and Land Registration Act confer no such power before lawful cancellation of titles
Sections 15 and 16 of the Land Registration Act empower the preparation, maintenance and new editions of cadastral maps, but not expungement of existing registered parcels. Cleaning the mess should start with cancellation of illegal titles in a civil suit, after which removal from the maps would follow as a matter of course.
Whether the freeze on dealings with the suit properties without notice violated fair administrative action
The freeze was reasonable and in the public interest, though the failure to give notice was an error; the applicants were entitled to be informed of the outcome and heard before action
The investigation was internal and the applicants were not entitled to participate in it, but they had a right to be notified of the reason, informed of the outcome, and heard before any decision was taken on the findings. The freeze protected the public from transacting in land under investigation.
Legal principles established
#- The Director of Surveys has no power under the Land Registration Act 2012 or the Survey Act to expunge a parcel of land from a Registry Index Map while the parcel still exists in the land register; expungement can only follow lawful cancellation of the title
- The Land Registrar may exercise powers under Section 79 of the Land Registration Act 2012 to rectify the register, but must give a hearing to affected parties before doing so
- Issues of validity of title to land cannot be determined in judicial review proceedings; a normal civil suit with oral evidence is required
- A public body may lawfully freeze dealings with suspiciously created land parcels pending investigations in the public interest, even without notice to owners, though the owners are entitled to be informed of the outcome and heard before any action on the findings
Court orders
#- 1.The Regional Surveyor, Nyanza Region and the Director of Surveys are prohibited from expunging from Kisumu Kanyakwar B Registration Section RIM Sheet Nos. 2 and 3, and Kisumu Kogony Registration Section RIM Sheet No. 18 the parcels of land said to have been created outside the boundaries of the two registration sections, save where a title has been lawfully cancelled
- 2.The Attorney General or the Director of Surveys shall be at liberty to file a civil suit in the Environment and Land Court within 90 days against the registered owners of the parcels of land said to have been illegally created for determination of the legality of the said parcels
- 3.If the Attorney General fails to file suit as ordered, the Land Registrar, Kisumu, the Regional Surveyor, Nyanza Region and the Director of Surveys shall allow the owners of the said parcels, save where titles have been cancelled by the court, to freely deal with their parcels of land
- 4.Each party shall bear its costs of the consolidated applications
- Jurisdiction invoked
- Judicial review under Order 53 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act (Cap 26); Environment and Land Court jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kisumu County Land Registrar & another; .Otieno & 29 others (Exparte) (Judicial Review Application E001 & E005 of 2023 (Consolidated)) [2024] KEELC 6577 (KLR)", Case Analysis (2024). ELC Judicial Review No. E001 of 2023 (Consolidated with ELC Judicial Review No. E005 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6577/eng@2024-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.