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ELCAllowedJudicial Review Application (Notice of Motion dated 31st July, 2023)· [2024] KEELC 7131 (KLR)

Republic v Deputy County Commissioner; Justus (Exparte Applicant); Kamumo (Interested Party) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 7131 (KLR)

Environment and Land Court of Kenya
30 October 2024
6,769 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court has confirmed that administrators cannot cancel your land title—only courts can revoke registered ownership.

What this practically means

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Executive summary

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This was a judicial review application brought by way of a Notice of Motion dated 31st July, 2023 under Order 53 rule 3 of the Civil Procedure Rules, seeking an order of certiorari to quash the respondent's decision of 19th January, 2023 in Minister's Appeal No. 166 of 2019, which purported to revoke the ex-parte applicant's titles over parcels Kamwimbi 'A'/121, 123, 138, 197 and 198 and transfer them to the interested party. The applicant argued the decision was made without jurisdiction, in breach of natural justice (one of the respondents to the appeal being deceased), and ultra vires since the titles had already issued under the Land Registration Act. The respondent and the interested party countered that the appeal process under the Land Adjudication Act was lawful, that the applicant was heard or chose to absent himself, and that the application improperly invited the court to review the merits. The court, C.K. Yano J, framed two issues: whether the respondent, acting on delegated powers under the Land Adjudication Act, had jurisdiction to cancel registered land; and whether certiorari was available. Applying the established principles that judicial review concerns process rather than merits, the court held that only courts with jurisdiction over land matters may order rectification of the register or revocation of a title, and that the respondent, whose powers under Cap 283 and 284 were limited to ascertainment of rights, acted without jurisdiction, ultra vires and illegally in ordering revocation of the titles. The motion was allowed as prayed with costs to the ex-parte applicant.

Key legal issues

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01

Whether the respondent (DCC acting on delegated Ministerial powers) had jurisdiction to revoke registered titles

Holding

The respondent acted without jurisdiction, ultra vires and illegally in ordering revocation of title deeds already issued; the power of rectification/cancellation of title vests only in courts, so the decision must be quashed.

Reasoning

Sections 26 and 80 of the Land Registration Act and Section 9 of the Magistrates' Court Act confine rectification and cancellation of registered titles to courts with jurisdiction over land matters, defined under Section 2 of the Land Registration Act as the Environment and Land Court and other courts with such jurisdiction. The respondent's powers under Cap 283 and 284 are limited to ascertainment of individual rights. Since parcel 197 had been registered and a title issued in 2017, ordering revocation was in excess of power and without jurisdiction, warranting certiorari.

p. 12
02

Whether the judicial review remedy of certiorari is available on the grounds advanced

Holding

Certiorari issues where a decision is made without or in excess of jurisdiction or in breach of natural justice; since the respondent acted without jurisdiction, the remedy was available and merited.

Reasoning

The court restated the Gathenji principles that certiorari will issue where a decision is without jurisdiction, in excess of jurisdiction, or where the rules of natural justice were not adhered to. Judicial review examines process, not merits. Having found the respondent's revocation of titles to be an illegality and ultra vires, the court held the Notice of Motion dated 31st July 2023 merited and allowed it as prayed.

p. 10

Legal principles established

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  • A decision-maker exercising delegated powers under the Land Adjudication Act has no power to order rectification of the register or revocation of an issued title; only courts with jurisdiction over land matters may do so.
  • Judicial review is concerned with the decision-making process, not the merits of the decision.

Court orders

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  1. 1.An order of certiorari quashing the respondent's decision in Minister's Appeal No. 166 of 2019 delivered on 19th January, 2023 which purportedly revoked the ex-parte applicant's titles for parcels No. Kamwimbi 'A'/121, 123, 138, 197 and 198
  2. 2.The Ex-parte applicant is awarded the costs of the proceedings

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 rule 3
  • Land Adjudication ActSections 2, 4, 10, 12, 13, 20, 21, 26, 27(3)(b), 28, 29, 29(4)
  • Land Consolidation Act Cap 283Section 13
  • Land Registration Act No. 3 of 2012Sections 2, 26, 80
  • Fair Administrative Actions ActSection 4
  • Magistrates' Court ActSection 9
  • Environment and Land Court ActSection 26
  • Constitution of Kenya, 2010Articles 22(1), 2(a), 3(d), 23(3)(f), 50, 258

Cases cited (24)

  • Republic Vs. Fazul Mahamed & 3 Others Ex-parte Okiya Omtatah Okoiti
    [2018] eKLR
  • Republic Vs. Cabinet Secretary Ministry of Lands & Physical Planning & 3 Others ex-parte John Mbiri; Joseph Kaguura Mbugi (Interested Party)
    [2021] eKLR
  • Republic Vs. Public Procurement Administrative Review Board & 2 Others Ex-parte Rongo University
    [2018] eKLR
  • Municipal Council of Mombasa Vs. Republic & Another
    [2002] eKLR
  • Kenya National Examination Council Vs. Republic Ex-parte Geoffrey Gathenji & 9 Others
    Nairobi Civil Appeal No. 266 of 1996; [1997] eKLR
  • Republic Vs. County Director of Education, Nairobi & 4 Others Ex-Parte Abdukadir Elmi Robleh
    [2018] eKLR
  • Msagha Vs. Chief Justice & 7 Others
    Nairobi HCMCA No. 1062 of 2004 [2006] 2 KLR 553
  • Republic Vs. Director of Immigration Services & 2 Others Ex-parte Olamilekan Gvenga Fasuyi & 2 Others
    (2018) eKLR
  • Republic Vs. Kenya Power & Lighting Company Limited & Another
    [2013] eKLR
  • East African Community Vs. Railways African Union (Kenya) and Others (No. 2)
    Civil Appeal No. 41 of 1974 [1974] EA 425
  • Isaac Gathungu Wanjohi & Another Vs. Director of City Planning of Nairobi & Another
    (2014) eKLR
  • Tobias Achola Osindi and Others Vs. Cyprianus Otieno Ogalo and Others
    [2013] eKLR
  • Dominic Musei Ikombo Vs. Kyule Makau
    [2019] eKLR
  • Jambo Fondo Gona & Another Vs. Minister of Lands & Settlement & 6 Others
    [2012] eKLR
  • Republic Vs. Minister of Lands & Another Ex-parte aKyema Muasya
    [2019] eKLR
  • Vincent Narisa Krop & 3 Others Vs. Martin Semero Limakou & 12 Others
    [2020] eKLR
  • Lydia Kuri Silas Vs. Land Adjudication Officer Tigania District and 2 Others
    (2017) eKLR
  • Antina Mohammed Hamis ex-parte applicant Vs. Suba District & Others B and M Mining Co. Ltd (JR 17/12 Kisii)
  • Domenica Kalotia Kalalu Vs. Tigania East District Land Adjudication and Settlement Officer and Another
    (2019) eKLR
  • Republic Vs. Land Adjudication Officer Igembe/Tigania District
    (2009) eKLR
  • Chief Constable of the North Wales Police Vs. Evans
    [1982] 1 WLR 1155
  • Municipal Council of Mombasa Vs. Umoja Consultants Ltd
    [2002] eKLR
  • Republic Vs. Cabinet Secretary, Ministry of Lands and Settlement & 2 Others Ex-Parte General Mbuuri Kabugu
    [2018] eKLR
  • Halsbury Laws of England 5th Edition 2021 Vol 61
    para 639
Jurisdiction invoked
Order 53 rule 3 of the Civil Procedure Rules (leave granted 27th July, 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 Deputy County Commissioner; Justus (Exparte Applicant); Kamumo (Interested Party) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 7131 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 31st July, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7131/eng@2024-10-30

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