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ELRCAllowedNot stated in the judgment· [2016] KEELRC 786 (KLR)

Republic v Nakuru District Land Registrar & another Ex-Parte Szumbah Mwanaongoro & 7 others [2016] KEELRC 786 (KLR)

Environment and Land Court of Kenya
20 July 2016
MSMunyao Sila
1,207 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court quashed a Land Registrar's decision to revoke titles because the owners were never given a hearing.

What this practically means

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Executive summary

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By a Gazette Notice published on 26 November 2010 (Notice No. 15574), the District Land Registrar, Nakuru, purported to revoke numerous titles, including Nakuru Municipality Block 12/269 to 281, on the ground that the parcels were reserved for Moi Primary School and the Nakuru Municipality Water Treatment Plant and that the allocations were illegal and unconstitutional. Eight ex-parte applicants, registered proprietors of some of these parcels, moved the court for leave and thereafter a substantive notice of motion seeking certiorari to quash the Registrar's decision and prohibition restraining the Government from acting on it. Their case was that they acquired the land through a lawful 1997 sale by the Municipal Council of Nakuru, approved by the Minister for Local Authorities in 1998 to settle the Council's debt to Kenya National Assurance; they held allotment letters and Certificates of Lease issued in 2002, had possessed and developed the land, and were first registered owners. They contended that the cancellation without a hearing breached natural justice and that the Registrar lacked power to cancel titles under section 143(1) of the repealed Registered Land Act. The respondent filed only Grounds of Opposition, contending the matter was not suitable for judicial review, that remedies were unexhausted, and that the motion was an abuse of process, and made no submissions. The court allowed the motion: the applicants were condemned unheard, contrary to audi alteram partem, and the respondent did not demonstrate that the Registrar had power to cancel titles, the court endorsing the reasoning that only a court may cancel titles. Certiorari and prohibition issued as prayed, with costs to the ex-parte applicants. Judgment delivered at Nakuru on 20 July 2016.

Key legal issues

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01

Breach of natural justice (audi alteram partem)

Holding

The revocation was quashed because the applicants were condemned unheard

Reasoning

The court held it is a cardinal principle that a person ought not to be condemned unheard. The Land Registrar, exercising administrative power, revoked the titles by Gazette Notice without affording the registered proprietors any opportunity to be heard. Such a decision could not stand and warranted certiorari.

p. 2
02

Powers of the Land Registrar to cancel titles

Holding

The respondent failed to demonstrate that the Registrar had power to revoke titles; the court doubted any such power, reasoning only a court may cancel titles

Reasoning

The applicants contested the Registrar's power, invoking section 143(1) of the repealed Registered Land Act and two authorities under the Registration of Titles Act. Although those authorities concerned a different statute, the court found their reasoning - that only the Court may cancel titles - sound. The respondent led no material showing the Registrar's power to cancel.

p. 3

Legal principles established

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  • A person exercising administrative power must hear those negatively affected before acting - audi alteram partem
  • Only a court of law, not the Land Registrar, may cancel issued titles

Court orders

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  1. 1.Order of certiorari quashing the decision of the Nakuru District Land Registrar vide Gazette Notice No. 15574 of 26 November 2010 revoking titles Nakuru Municipality Block 12/269, 271, 273, 274, 275, 278, 279 and 281
  2. 2.Order of prohibition prohibiting and/or restraining the Government from acting on the said decision of the Nakuru District Land Registrar
  3. 3.Costs of the motion awarded to the ex-parte applicants

Authorities

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Legislation

  • Registered Land Act (repealed)Section 143(1)

Cases cited (2)

  • Kuria Greens Limited vs Registrar of Titles & Another
    (2011) eKLR
  • Republic vs The Registrar of Titles Mombasa & 2 Others ex parte EMFK Limited
    (2012) eKLR
Jurisdiction invoked
Judicial review under the substantive motions for certiorari and prohibition (leave granted on 18 January 2011); jurisdiction not tied in the judgment to a specific cited provision

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 Nakuru District Land Registrar & another Ex-Parte Szumbah Mwanaongoro & 7 others [2016] KEELRC 786 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/786/eng@2016-07-20

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