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

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 16th October 2025 and all consequential entries 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 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. 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 adavit sworn by Erick Matoke Onyancha, the Ex Parte Applicant. 3. The Ex Parte Applicant deposed that on 20th February 2025, he entered into a property exchange agreement with his father, the Second Respondent herein, pursuant to which the Second Respondent agreed to transfer to him the parcel of land known as Title No. Nyansiongo Settlement Scheme/213 (the suit property) in exchange for the Ex Parte Applicant’s Title No. Kajiado/Kitengela/116549. That there was no consideration paid on either side since the parties agreed to gift each other and that transfer documents were executed on 20th February 2025. 4. The Ex Parte Applicant further deposed that transfer was completed and that a title was issued to him on 10th June 2025. That he performed his part of the agreement and transferred his Kajiado/ Kitengela/116549 to the Second Respondent. That upon conducting a search on the suit property on 23rd December 2025, he realised that it had been transferred back to the Second Respondent. 5. The Ex Parte Applicant went on to depose that on 16th October 2025, the First Respondent cancelled his title based on an adavit by the Second Respondent, without any Court order or his consent. That the First Respondent did so under the guise of rectication of the register under Section 79 (2) of the Land Registration Act, and without any notice to him. He added that the First Respondent’s action was ultra vires Section 80 (1) of the Land Registration Act since power to cancel titles vests exclusively in the Courts and a violation of his rights under Articles 40 and 47 of the Constitution. 6. The First, Third and Fourth Respondents opposed the application through a replying adavit sworn on 25th May 2026 by Martin Osano, the County Land Registrar, Nyamira. He deposed that on 16th October 2025, he received a written complaint from the Second Respondent through an adavit of the same date stating that he had lost his original certicate 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. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5492/eng@2026-09-21 2

page 2 of 6

7. 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 10th June 2025 on account of fraud. That he then made a new entry number 9 reinstating entry number 2 dated 16th October 1986 and that on 27th February 2026, a replacement title was issued to the Second Respondent. He added that he was an innocent third party being dragged into a family dispute between a father and a son. 8. The Second Respondent opposed the application through a replying adavit 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 which cannot be determined through judicial review but require an ordinary suit. 9. The Second Respondent deposed in the adavit 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 certicate of title and subsequently learnt that the Ex Parte Applicant procured transfer of the suit property into his own name on 10th June 2025 without his (Second Respondent’s) knowledge or authority. He added that the transfer was procured by fraud and that as of 15th May 2025, there was reciprocal exchange with the Ex Parte Applicant’s Kajiado/Kitengela/116549. That he made a report to the police concerning his loss of title through Occurrence Book Number 100/03/10/2025 and swore a statutory declaration which the First Respondent acted on by rectifying the register on 16th October 2025 thereby reinstating his proprietorship. 10. The application was canvassed through written submissions. The Ex Parte Applicant led submissions dated 10th June 2026. It was submitted on his behalf that the application satises 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 County Council of Kwale & another; Kondo & 57 others (Ex parte) [1998] KEHC 2 (KLR) and Republic v Nairobi City County & another Ex Parte Muchewa Limited [2017] KEHC 9507 (KLR). Consequently, the Ex Parte Applicant urged the Court to grant orders sought in the application. 11. It was also submitted that the Ex Parte Applicant had satised the requirements for the interim relief sought as there was a prima facie case of illegality and that the balance of convenience clearly favoured the Ex Parte Applicant since the suit property stood registered in the Second Respondent's name on the basis of an unlawful administrative act. 12. The First, Third and Fourth Respondents did not le any submissions. Instead, they relied entirely on the replying adavit sworn by the First Respondent. 13. The Second Respondent led submissions dated 10th June 2026. It was submitted on his behalf that the application was incompetent and constituted an abuse of the court process as it sought 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 required viva voce evidence and could not be resolved within judicial review proceedings. Relying on the cases of Commissioner of Lands v Hotel Kunste [1997] eKLR, Republic v Registrar of Titles Mombasa & 4 others Ex parte A.K. Abdulgani Limited [2018] eKLR and Pastoli v Kabale District Local Government Council & others [2008] 2 EA 300, the Second Respondent urged the Court to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5492/eng@2026-09-21 3

page 3 of 6

decline the invitation to sit as a judicial review court on merits of a private dispute, to determine fraud and order restoration of a title impugned for forgery. The Second Respondent therefore urged the Court to dismiss the application. 14. 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. 15. I have carefully considered the application, statements of facts, adavits, 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. 16. The principles governing the grant of leave are now well settled. Leave is intended to lter 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 General [1992] KECA 46 (KLR) where it held thus: 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. 17. 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 Ex Parte Applicant demonstrates an arguable case t for further investigation at a substantive hearing. The Court is not expected at the leave stage to make denitive ndings of fact or law. 18. To contextualise the dispute herein, I nd 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. 19. It is not contested that the Second Respondent was the registered proprietor of the suit property from 16th October 1986 until 10th June 2025 when the Ex Parte Applicant became the proprietor. On 16th October 2025, the First Respondent rectied the register by cancelling the Ex Parte Applicant’s proprietorship and reinstating the Second Respondent’s. All the foregoing is borne out from the certied copy of the register which is on record. 20. 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. 21. 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. Suce 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. 22. There have been contestations as to whether this is a proper case for judicial review, given the relationship between the parties and the allegations of fraud. Those are issues that will be dealt with in https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5492/eng@2026-09-21 4

page 4 of 6

the substantive proceedings. The Court need not answer them at the leave stage. It suces that there is a prima facie case. 23. 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 Ocer Commanding Ruai Police Station & another; Nehemiah (Ex parte) [2023] KEHC 1329 (KLR). 24. In the present case, the decision complained of has been implemented. The Ex Parte Applicant's title has been cancelled, the register rectied and the Second Respondent reinstated as the registered proprietor. In those circumstances, an order that leave operates as stay would serve no practical purpose. 25. 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 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. 26. Judicial review proceedings are sui generis, and the remedies available under Section 8 of the Law Reform Act are conned 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. 27. 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. 28. 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 to remove into this Honourable Court and quash the decision of the 1st Respondent dated 16th October 2025 purporting to rectify the Register eectively cancelling the Ex parte Applicant's proprietorship of Land Title No. Nyansiongo Settlement Scheme/213, together with all consequential and subsequent entries; ii. Mandamus to compel the 1st Respondent to restore the Ex parte Applicant as the 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. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5492/eng@2026-09-21 5

page 5 of 6

b. The substantive application for the above judicial review orders be led 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 21ST 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 2nd Respondent Court Assistant: B Kerubo https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5492/eng@2026-09-21 6

page 6 of 6