Kemboi v Kimetei (Environment and Land Appeal E006 of 2024) [2024] KEELC 7284 (KLR)

Under the now-repealed Registered Land Act, the Registrar could only revoke a title after calling it in and giving the registered proprietor an opportunity to be heard. Here, the Registrar never invoked Section 17 to require the Applicants to surrender their title. He instead made public statements in the press announcing the cancellation and announced it through the Kenya Gazette without notice. The proprietary rights of the Applicants are protected under Article 40 of the Constitution, and they were entitled to fair administrative action under Article 47. The Registrar's conduct was therefore unlawful and liable to be quashed by certiorari and restrained by prohibition.

The court acknowledged that Section 143 of the Registered Land Act (repealed) allowed the Registrar to revoke a title acquired by fraud or mistake, which could arguably affect even a subsequent purchaser who acquired the title during the pendency of proceedings. However, the Registrar did not purport to act under Section 143. Nor did he seek a court order under Section 143(2), which restricts revocation after the first registration. Instead, the Registrar purported to exercise powers under Sections 17 and 26, both of which required notice and a hearing. Without compliance with the statutory procedure, the purported cancellation was void, and the titles held by the Interested Parties, being derived from that cancellation, were of no effect. The rights of the subsequent registered owners were therefore subject to the outcome of the judicial review proceedings.

The court recognised the delay in the prosecution of the judicial review application. However, it took the view that the delay should not defeat the ends of justice, particularly where the questions raised were of significant public interest and where the parties themselves had contributed to the delay by requesting adjournments to explore an out-of-court resolution. The discretion to strike out for want of prosecution is one that must be exercised sparingly and in a manner that advances substantive justice rather than procedural technicality. Accordingly, the notice of motion by the 2nd Interested Party was dismissed with costs to the Applicants.