Republic (Ex Parte: Eric Matoke Onyancha) v The County Land Registrar, Nyamira & 3 others

Mugirango/Siamani/4283, together with all consequential and subsequent entries; (b) Mandamus to compel the 1st Respondent to restore the Ex parte Applicant as registered proprietor and issue a fresh Title Deed; and (c) Prohibition to restrain the Respondents from dealing with, disposing of, or interfering with the suit property. 2. That such leave do operate as a stay of the decision dated 6th October 2025 and all consequential entries including the purported "Rectification" entry pending the substantive application. 3. That a temporary injunction be issued restraining the Respondents from dealing with or interfering with the suit property and restraining the 1st Respondent from registering any further entries pending the hearing and determination of this application. 4. That any subsequent entries in the Land Register resulting from the illegal cancellation, including purported "Rectification" entry, be declared null and void and be expunged. 5. That pursuant to Section 9 (4) FAAA 2015, the Applicant be exempted from the doctrine of exhaustion of remedies on grounds of exceptional circumstances. ELCLJR No. E001 of 2026 (Nyamira) Page 2 of 13

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6. That the costs of this application be provided for. 2. The application is brought under Order 53 Rule 1 of the Civil Procedure Rules, Section 9 of the Law Reform Act and Section 9 (4) of the Fair Administrative Action Act. It is based on the grounds listed on its face and is supported by the annexed statutory statement and verifying affidavit sworn by Erick Matoke Onyancha, the Ex Parte Applicant. 3. The Ex Parte Applicant deposed that he was the registered proprietor of the parcel of land known as Title No. West Mugirango/Siamani/4283 (the suit property) having acquired the same by way of gift from his father, the Second Respondent herein, and that all applicable statutory requirements were complied with and that a title deed was issued to him by the First Respondent. 4. The Ex Parte Applicant further deposed that upon conducting a search on 6th January 2026, he realised that on 6th October 2025, the First Respondent acting upon a complaint by the Second Respondent cancelled his title and reinstated the Second Respondent as the proprietor without notice and a replacement title issued to the Second Respondent. That the First Respondent did so under the guise of rectification of the register under Section 79 (2) of the Land Registration Act, solely on false information from the Second Respondent who claimed that the title had been lost and without any consent from him. ELCLJR No. E001 of 2026 (Nyamira) Page 3 of 13

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5. The First, Third and Fourth Respondents opposed the application through a replying affidavit sworn on 25 th May 2026 by Martin Osano, the County Land Registrar, Nyamira. He deposed that on 6th October 2025, he received a complaint from the Second Respondent that he had lost his original certificate of title in respect of the suit property and that and that the Ex Parte Applicant who is his son had caused the parcel to be transferred to himself without the Second Respondent’s knowledge and participation. 6. Mr Osano further deposed that on the same date, he invoked his statutory powers under Section 79 (2) of the Land Registration Act and proceeded to rectify the register by cancelling entries number 7 and 8 dated 7 th August 2025 on account of fraud. That he then made new entries number 9 and 10 reinstating entries number 4, 5 and 6 and registered a restriction for the lost certificate of title pursuant to Section 76 of the Land Registration Act. He also stated that on 27 th February 2026, a replacement title was issued to the Second Respondent and added that he was an innocent third party being dragged into a family dispute between a father and a son. 7. The Second Respondent opposed the application through a replying affidavit which he swore on 3rd June 2026 and grounds of opposition dated 3rd June 2026. He contended in the grounds of opposition that the dispute turns on seriously and bitterly contested facts including allegations of fraud all of ELCLJR No. E001 of 2026 (Nyamira) Page 4 of 13

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which cannot be determined through judicial review but require viva voce evidence in an ordinary suit. 8. The Second Respondent deposed in the affidavit that he is the registered proprietor of the suit property and that the Ex Parte Applicant is his son. He went on to state that he never transferred or gifted he suit property to the Ex Parte Applicant and that he lost the original of his certificate of title and subsequently learnt that the Ex Parte Applicant procured transfer of the suit property into his own name on 7 th August 2025 without his (Second Respondent’s) knowledge or authority. He added that the transfer was procured by fraud and that he lodged a lodged a complaint on 6 th October 2025 which the First Respondent acted on by rectifying the register by cancelling entries number 7 and 8, reinstating his proprietorship and issuing to him a replacement title. 9. The application was canvassed through written submissions. The Ex Parte Applicant filed submissions dated 10 th June 2026. It was submitted on his behalf that the application satisfies the threshold for the grant of leave to commence judicial review proceedings as it raises serious and arguable questions concerning the legality of the decision made by the First Respondent. It was further submitted that the central proposition that the Registrar has no power to cancel title without a court order is established jurisprudence and that the Ex Parte Applicant had demonstrated an arguable case. Reliance was placed inter alia on the cases of Republic v ELCLJR No. E001 of 2026 (Nyamira) Page 5 of 13

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County Council of Kwale & another; Kondo & 57 others (Ex parte) [1998] KEHC 2 (KLR) and Republic v Chief Land Registrar & another Ex-parte Yosabia Kerubo Manyura [2018] eKLR. Consequently, the Ex Parte Applicant urged the Court to grant orders sought in the application. 10.It was also submitted that the Applicant satisfies the requirements for the interim relief sought as there is a prima facie case of illegality on an admitted factual basis and that the balance of convenience clearly favours the Applicant, as the suit property currently stands registered in the Second Respondent's name on the basis of an unlawful administrative act. 11.The First, Third and Fourth Respondents did not file any submissions. Instead, they relied entirely on the replying affidavit sworn by the First Respondent. 12.The Second Respondent filed submissions dated 10 th June 2026. It was submitted on his behalf that the application is incompetent and constitutes an abuse of the court process as it seeks to determine contested questions of ownership of land through judicial review proceedings. It was argued that the dispute raises serious allegations of fraud, forgery and authenticity of transfer documents, all of which require viva voce evidence and cannot be resolved within judicial review proceedings. Relying on the cases of Municipal Council of Mombasa v Republic; ELCLJR No. E001 of 2026 (Nyamira) Umoja Page 6 of 13 Consultants Ltd

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(Interested Party) [2002] KECA 8 (KLR), Republic v Senior Land Registrar of Titles Mombasa; Langat (Ex parte Applicant) [2024] KEELC 4257 (KLR) and Republic v Chief Land Registrar & 2 others; Marg Ridge Estate Limited (Ex parte) [2025] KEELC 7194 (KLR), the Second Respondent urged the Court to decline the invitation to sit as a judicial review court on merits of a private dispute, to determine fraud and declare title. The Second Respondent therefore urged the Court to dismiss the application. 13.Both the Ex Parte Applicant and the Second Respondent dwelt at length in their submissions on validity of the First Respondent’s action and merits of the anticipated judicial review proceedings. I have deliberately steered clear of those aspects since they are premature at this juncture. 14.I have carefully considered the application, statements of facts, affidavits, the grounds of opposition and the parties’ submissions. The issues that arise for determination are whether leave should issue, and if so, whether leave shall operate as stay. 15.The principles governing the grant of leave are now well settled. Leave is intended to filter out frivolous, vexatious or hopeless claims while allowing arguable cases to proceed for substantive hearing. The Court of Appeal discussed those principles in Kariuki v Attorney [1992] KECA 46 (KLR) where it held thus: ELCLJR No. E001 of 2026 (Nyamira) Page 7 of 13 General

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In this appeal, the issue is whether the appellant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of the Act was brought into question. Without a rebuttal to these allegations, the appellant certainly disclosed a prima facie case. For that, he should have been granted leave to apply for the orders sought. 16.In Republic v County Council of Kwale & another; Kondo & 57 others (Ex parte) [1998] KEHC 2 (KLR), Waki J. (as he then was) observed that leave should be granted where, on the material before the Court, the Applicant demonstrates an arguable case fit for further investigation at a substantive hearing. The Court is not expected at the leave stage to make definitive findings of fact or law. 17.To contextualise the dispute herein, I find it necessary to review the uncontested facts in this matter. The Ex Parte Applicant and the Second Respondent are closely related: the latter is the former’s father. The two have a bitter dispute about ownership of the suit property. ELCLJR No. E001 of 2026 (Nyamira) Page 8 of 13

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18.It is not contested that the Second Respondent was the registered proprietor of the suit property from 3 rd November 1995 until 7th August 2025 when the Ex Parte Applicant became the proprietor. On 6th October 2025, the First Respondent rectified the register by cancelling the Ex Parte Applicant’s proprietorship and reinstating the Second Respondent’s. All the foregoing is borne out from the certified copy of the register which is on record. 19.The Ex Parte Applicant contends that the impugned decision of the First Respondent to rectify the register to deprive him of proprietorship was reached without notice, without hearing and without any legal capacity to do so. On the other hand, the Respondents maintain that the First Respondent acted within statutory powers conferred on him since, according to them, the transfer in favour of the Ex Parte Applicant had been procured through fraud. 20.At this point, the Court is only required to discern whether a prima facie case has been made and to steer clear of contested facts and the application of the law to those facts. Those must await a substantive hearing. Suffice it to state that the Ex Parte Applicant has demonstrated a prima facie case on legality of the First Respondent’s impugned decision. He has made a case for granting of leave. 21.There have been contestations as to whether this is a proper case for judicial review, given the relationship between the ELCLJR No. E001 of 2026 (Nyamira) Page 9 of 13

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parties and the allegations of fraud. Those are issues that will be dealt with in the substantive proceedings. The Court need not answer them at the leave stage. It suffices that there is a prima facie case. 22.Regarding whether leave should operate as stay, it is important to note that the purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made. The decision whether or not to grant stay is however discretionary and must be exercised judiciously depending on the circumstances of each case. See Taib v Minister for Local Government & 3 others [2006] KEHC 3166 (KLR) and Republic v Officer Commanding Ruai Police Station & another; Nehemiah (Ex parte) [2023] KEHC 1329 (KLR). 23.In the present case, the decision complained of has been implemented. The Ex Parte Applicant's title has already been cancelled, the register rectified and the Second Respondent reinstated as the registered proprietor. In those circumstances, an order that leave operates as stay would serve no practical purpose. 24.Pursuant to prayer numbers 3 and 4 in the application, the Ex Parte Applicant sought a temporary injunction restraining further dealings with the suit property and cancellation of ELCLJR No. E001 of 2026 (Nyamira) Page 10 of 13

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subsequent entries in the register. I note that injunctive relief is not available within judicial review proceedings commenced under Order 53 of the Civil Procedure Rules. Judicial review proceedings are sui generis, and the remedies available under Section 8 of the Law Reform Act are confined to the public law remedies of certiorari, prohibition and mandamus. See Cortec Mining Kenya Limited v Cabinet Secretary, Attorney General & 8 Others [2015] eKLR. Equally, while dealing with an application for leave to commence judicial review proceedings, the Court cannot grant cancellation of subsequent entries in the register. 25.Even as I am persuaded that the Ex Parte Applicant has made a case for leave to apply for judicial review, given the relationship between the parties and the allegations of fraud, the parties will themselves have to consider whether judicial review proceedings will get to the root of, and resolve, the dispute between them. 26.Arising from the foregoing, I make the following orders: a) Leave is granted to the Ex Parte Applicant to apply for Judicial Review orders of: i. Certiorari Court to remove into this and quash the decision Honourable of the 1st Respondent dated 6th October 2025 purportedly rectifying the Register which effectively cancelled the Ex parte Applicant's ELCLJR No. E001 of 2026 (Nyamira) Page 11 of 13

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ownership of Land Mugirango/Siamani/4283, Title No. together West with all consequential and subsequent entries; ii. Mandamus to compel the 1st Respondent to restore the Ex parte Applicant as registered proprietor and issue a fresh Title Deed; and iii. Prohibition to restrain the Respondents from dealing with, disposing of, or interfering with the suit property. b) The substantive application for the above judicial review orders be filed and served, together with written submissions thereon, within twenty one (21) days from the date of delivery of this ruling. c) Costs shall abide the outcome of the substantive judicial review proceedings. Dated, signed, and delivered at Nyamira, this 21 st day of September 2026. D. O. OHUNGO JUDGE Delivered in the presence of: Mr Mbaka for the Ex Parte Applicant Mr Ndiritu for the 1st, 3rd and 4th Respondents Ms Masaba holding brief for Ms Wangari for the 2 nd Respondent ELCLJR No. E001 of 2026 (Nyamira) Page 12 of 13

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Court Assistant: B Kerubo ELCLJR No. E001 of 2026 (Nyamira) Page 13 of 13

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