Republic v Registrar of Lands & 2 Others, Ex-parte Rachael Akoth Agunda

Magistrate’s Court in Civil Case No. 629 of 2014 was not sought. 2. The Ex parte Applicant having obtained the Court’s leave to apply for Judicial Review orders on 27/01/2026, did file the substantive Notice of Motion, as required under Sections 1A, 1B and Section 3A of the Civil Procedure Act Cap. 21 Laws of Kenya, Sections 8 and 9 of the Law Reform Act (Cap. 26 of the Laws of Kenya), Order 53 Rules 3 and 4 of the Civil Procedure Rules, 2010 and all enabling provisions of law seeking the following orders: a) An order of certiorari to issue to remove into the High Court for purposes of being quashed the Respondent's decision dated 2/07/2025. b) An order of prohibition to issue restraining the Respondent from conducting any further proceedings or taking any further action or making any further decisions in respect of property title number L.R. 76/882. c) Costs of and incidental to this matter be provided for. 3. The basis of the Application being grounds set out in the Statutory Statement dated 26/01/2026 and the Verifying Affidavit of RACHEL AKOTH AGUNDA sworn on 26/01/2026 accompanying the application for leave. 4. The Motion is opposed by the Interested Party only. In the Replying Affidavit sworn on 11/05/2026, David Njiriri Mbugua ELCLJR NO. E001 OF 2026 2|Page

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outlines his opposition to the Judicial Review application, stating that he and his spouse, Peris Wanjiku Gakui, are the registered joint owners of land parcel L.R. 76/763. He attaches a 2025 search certificate marked “DNM.1” as evidence of their ownership and a 2018 search certificate marked “DNM.2” showing that the neighboring parcel, L.R. 76/762, is registered to David Sifuma and John Sifuma. 5. The deponent contends that the Applicant has misled the Court regarding the acquisition of L.R. 76/882. He notes that a sale agreement dated 17/10/2000, marked “DNM.3”, shows the Applicant's husband and the second Interested Party actually purchased a portion of L.R. 76/763 from Peter Kinyanjui, and asserts that L.R. 76/882 did not exist in 2009. Instead, he and his spouse bought L.R. 76/763 from Elizabeth Wacuka Ngure through a sale agreement dated 26/11/2009, marked “DNM.4”, paying the full purchase price via bankers' cheques through her Advocate, as shown in the bundle of cheques marked “DNM.5a-c”. Elizabeth had acquired the land from her father, Peter Kinyanjui, via a conveyance dated 27/08/2002, marked “DNM.6”. 6. He clarifies that L.R. 76/763 was created when Peter Kinyanjui obtained approval to subdivide L.R. 76/143 into two portions in 1998, as evidenced by the final approval document marked “DNM.7”. Upon subdivision, Peter Kinyanjui sold L.R. 76/762 to David Sifuma and the second ELCLJR NO. E001 OF 2026 3|Page

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Interested Party, while transferring L.R. 76/763 to Elizabeth Wacuka. 7. The transfer to the deponent was delayed when Elizabeth Wacuka passed away in July 2010, which is supported by the Death Certificate marked “DNM.8”. Succession proceedings were subsequently initiated in 2012, documented by the Letters for Administration marked “DNM.9”, culminating in a Certificate of Confirmation of Grant issued on 2/11/2014 naming the deponent and his spouse as confirmed beneficiaries, marked “DNM.10”. Their Advocates then lodged the transfer documents with the Ministry of Lands in 2015, as shown by the booking form marked “DNM.11”, following a 2015 official search marked “DNM.13” that confirmed Elizabeth was still the registered owner. The registration was finalized, reflecting their joint ownership on the 2025 search marked “DNM.12”. 8. The boundary dispute began around 2012 when the deponent attempted to erect a permanent fence but could not locate the boundary beacons along the Applicant's parcel. After waiting for the succession process to conclude, he formally applied for beacon identification through the Kiambu District Surveyor in 2018. The surveyor summoned all neighboring parties via the area Chief, as shown in the letter dated 6/07/2018 marked “DNM.14”. 9. During the exercise, the Applicant's spouse presented a new survey map that differed from the original subdivision map ELCLJR NO. E001 OF 2026 4|Page

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marked “DNM.15”. This new map, marked “DNM.16”, depicted an unauthorized amalgamation of L.R. 76/763 and L.R. 76/762 into L.R. 76/880, followed by a further subdivision into L.R. 76/881 through 883 and an access road. The deponent stresses that he never consented to any amalgamation, yet these new numbers were registered in the Applicant's name in 2018, even though a 2018 search confirmed L.R. 76/762 was still listed separately in the Applicant's name. 10. To investigate the issue, the deponent wrote to the Survey Office on 23/10/2024, marked “DNM.17”. He was informed that the records for L.R. 76/763 were missing due to the amalgamation. Subsequent searches revealed that L.R. 76/881 was registered to John and Leah Sifuma, L.R. 76/882 to the Applicant and David Sifuma, while L.R. 76/883 remained unregistered. 11. The Director of Surveys queried the Chief Land Registrar on 30/10/2024 regarding the status of these parcels, documented in the letter marked “DNM.18”. The Chief Land Registrar replied on 14/11/2024, via the letter marked “DNM.19”, noting an anomaly and stating that L.R. 76/881 and 882 were subdivided from L.R. 76/762 rather than L.R. 76/880, while confirming L.R. 76/763 remained registered to the deponent and his spouse. 12. The involved surveyor, Mr. B.M. Okumu, responded to the Director of Surveys on 10/03/2025, confirming that ELCLJR NO. E001 OF 2026 5|Page

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amalgamating parcels under different ownership was unprocedural and recommended revoking the subdivision survey information under F.R. No. FNO/66. Consequently, on 13/03/2025, the Director of Surveys wrote to the Chief Land Registrar confirming the cancellation of all survey records supporting L.R. 76/881-883 and their deed plans, as set out in the letter marked “DNM.20”. 13. Following this cancellation, the Land Registrar initially issued summons dated 20/03/2025 to the Applicant alone, marked “DNM.21”, leading to an initial Ex-parte hearing on 15/04/2025. Recognizing the need for a full hearing, the Land Registrar issued fresh summons dated 13/05/2025 to all affected parties, including the deponent, the area Chief, and the administrators of the late Elizabeth Wacuka's estate, marked as a bundle “DNM.22(a-e)”. 14. All parties, along with their legal Counsel, attended an inter-partes hearing on 27/05/2025 at the Geospatial Data Centre in Ruaraka before a panel of registration officers. The panel delivered a Ruling dated 2/07/2025, attached as “DNM.23”, which formally cancelled the survey records supporting the subdivision of L.R. 76/881-883 and reinstated parcels L.R. 76/762 and L.R. 76/763. 15. The deponent concludes by affirming that the Applicant received a fair hearing prior to the decision of 2/07/2025. He contends that the Director of Surveys acted within his powers to cancel fraudulent records, maintaining that the ELCLJR NO. E001 OF 2026 6|Page

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amalgamation of properties under separate ownership is legally untenable and amounts to fraud. 16. The Application was canvassed by way of written submissions. The Applicant filed their submissions dated 25/05/2026 and the 1st Interested Party filed their submissions dated 16/07/2026. 17. The Applicant submitted in the written submissions dated 25/05/2026, that the Respondent’s administrative decision is fundamentally flawed, legally baseless, and an administrative overreach that ought to be quashed by the Court. The Applicant asserts that the sole issue for determination is whether she is entitled to the Judicial Review orders sought, submitting that the impugned decision fails the administrative law standards of legality, procedural propriety, and rationality as established in Pastoli v. Kabale District Local Government Council & Others [2008] 2 EA 300 and affirmed in Super Nova Properties Ltd & Another v. District Land Registrar Mombasa & 2 Others; Kenya Anti-Corruption Commission & 2 Others (Interested Parties) [2018] KECA 17 (KLR). 18. On the limb of illegality, the Applicant submits that the Respondent acted entirely ultra vires and without jurisdiction. It is argued that Section 14 of the Land Registration Act does not confer power upon the Respondent to declare a registered proprietor’s Certificate of Title null ELCLJR NO. E001 OF 2026 7|Page

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and void, nor does Section 80 grant authority to revoke or cancel title. Re-emphasizing this statutory limitation, the Applicant relies on Super Nova Properties Ltd & Another v. District Land Registrar Mombasa (supra), which upheld the High Court’s position that the Land Registrar lacks statutory mandate to revoke title to land on account of fraud or illegality, as that exclusive jurisdiction belongs to a Court of law. Consequently, the Applicant submits that the decision strips her title of legal effect in direct violation of Article 40 of the Constitution, rendering the administrative act a complete nullity. 19. Regarding submits that procedural the impropriety, Respondent the infringed Applicant upon her constitutional rights under Article 47(1) and (2) of the Constitution, as operationalised by Sections 4 and 5 of the Fair Administrative Action Act. The Applicant explains that she was served with summons merely instructing her to appear to surrender her title for cancellation. However, upon attendance, the Respondent unilaterally transformed the proceeding into a hearing of an unserved, undisclosed complaint without prior notice. Grounding this submission on Sceneries Limited v. National Land Commission [2017] KEHC 8460 (KLR), which underscores that Article 50(1) right to a fair hearing requires an individual to be informed of the case against them and given an opportunity to present a defense before an impartial body, the Applicant asserts that ELCLJR NO. E001 OF 2026 8|Page

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the Respondent orchestrated a procedural ambush. Despite formal protests, the Respondent proceeded Ex-parte on the undisclosed complaint, thereby breaching the fundamental rules of natural justice and fair administrative action. 20.On the ground of irrationality, the Applicant submits that the Respondent arrived at a perverse decision that no reasonable authority, properly directing itself to the law and facts, could have reached. It is argued that the Respondent wrongfully assumed non-existent statutory powers, disregarded the indefeasibility of title enshrined under Section 26 of the Land Registration Act, and relied on extraneous factors that properly belong within the domain of judicial proceedings. The Applicant concludes by urging the Court to find the decision procedurally improper, illegal, and irrational, and accordingly grant the orders sought. 21. In response the 1st Interested Party in the written submissions dated 16/07/2026, oppose the Application dated 26/01/2026, arguing that the sought-after Judicial Review Orders of Certiorari and Prohibition against the Principal Land Registrar's decision of 2/07/2025 are wholly misconceived, incompetent, and unmeritorious. The 1st Interested Party explains that he is the registered proprietor of L.R. No. 76/763, which borders the Applicant’s parcel, L.R. No. 76/762. The dispute originated around 2012 when the 1 st Interested Party attempted to erect a boundary fence and encountered missing or altered beacons. ELCLJR NO. E001 OF 2026 9|Page

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22.That Subsequent inquiries with survey authorities exposed an illegal amalgamation of L.R. Nos. 76/763 and 76/762 into L.R. No. 76/880, which was then subdivided into L.R. Nos. 76/881, 76/882, and 76/883 alongside an access road, all undertaken without his knowledge or consent. This prompted a formal complaint and a comprehensive administrative inquiry by the Director of Surveys and the Principal Land Registrar into the authenticity of those survey records. 23.He further submits that the Applicant fails to meet the legal threshold for the grant of prerogative orders. Correcting the Applicant’s primary assertion, he states that the impugned Ruling of 2/07/2025 did not revoke or cancel any title deed which the Principal Land Registrar expressly acknowledged remains within the exclusive jurisdiction of a Court of law but rather cancelled the erroneous survey records and deed plans supporting the unlawful subdivision, thereby reinstating L.R. Nos. 76/762 and 76/763. Consequently, the prayer for Prohibition is spent and legally unviable because Prohibition cannot lie to quash a decision already rendered. Invoking the locus classicus Kenya National Examinations Council v. Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR, the 1st Interested Party reiterates that Prohibition decisions in only excess prevents contemplated or future of jurisdiction, whereas Certiorari requires proof that the public body acted without jurisdiction, in error of law, or in breach of natural justice. ELCLJR NO. E001 OF 2026 10 | P a g e

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24.It is further submitted that the Applicant has completely failed to establish any illegality, irrationality, or procedural impropriety in the administrative process. The record demonstrates that the Director of Surveys and the Chief Land Registrar conducted a thorough statutory inquiry, which included consultations, technical verification, and a written admission from the surveyor involved that the amalgamation of two properties under distinct ownership was unprocedural. The Applicant was afforded complete procedural fairness, having actively participated in an initial hearing on 15/04/2025 alongside her Counsel and son, followed by a full inter-partes hearing on 27/05/2025 where all affected parties and the area chief were heard before the Ruling was reserved. The rules of natural justice require adequate notice and a fair opportunity to be heard, both of which were fully satisfied. 25.In the end the 1st Interested Party submits that the Applicant is improperly inviting the Court to delve into the merits, survey history, and substantive ownership of the suit properties, rather than reviewing the legality of the decisionmaking process. Grounding this submission on Municipal Council of Mombasa v. Republic & Umoja Consultants Ltd [2002] eKLR, the 1st Interested Party emphasizes that a Judicial Review Court does not sit as an appellate tribunal over administrative bodies nor determine contested questions of title. Because the administrative process was ELCLJR NO. E001 OF 2026 11 | P a g e

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lawful, rational, and procedurally fair, the 1st Interested Party urges the Court to find the application devoid of merit and dismiss it with costs. Issues for Determination 26.The key issues for determination from the application for Judicial Review and from analysing the pleadings filed including written submissions are: i. Whether the administrative decision rendered on 2/07/2025 by the Respondent and the Director of Surveys was undertaken ultra vires and in breach of the principles of natural justice and fair administrative action, thereby establishing the grounds of illegality, procedural impropriety, and irrationality. ii. Whether the Ex-parte Applicant has satisfied the legal threshold for the grant of an order of certiorari to quash the decision of 2/07/2025. iii. Whether the Ex-parte Applicant is entitled to an order of prohibition to restrain the Respondent from taking further steps in respect of property title number L.R. 76/882. iv. Who bears the costs of this application? Analysis and Determination 27.The foundational premise of Judicial Review jurisdiction is strictly supervisory in nature, designed to control administrative bodies and lower tribunals to ensure they act ELCLJR NO. E001 OF 2026 12 | P a g e

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within the parameters of the law, fairly, and reasonably. In analyzing whether the Respondent's decision rendered on 2/07/2025 was afflicted by illegality, procedural impropriety, or irrationality, this Court must reaffirm that it does not sit as an appellate tribunal over the substantive correctness of administrative findings. 28.The doctrine establishing this boundary was articulated by Lord Diplock in the House of Lords decision in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, where he defined the grounds upon which administrative action is subject to judicial control as follows: "By ‘illegality’ as a ground for Judicial Review I mean that the decision-maker must understand correctly the law that regulates his decisionmaking power and must give effect to it... By ‘irrationality’ succinctly I mean referred unreasonableness’... It what can by to as ‘Wednesbury applies to now a be decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided ‘Procedural could have impropriety’... arrived includes at it... failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision." ELCLJR NO. E001 OF 2026 13 | P a g e

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29.Thus, Lord Diplock established that the source of a power does not automatically grant immunity from Judicial Review, further categorizing the grounds for review into illegality, irrationality, and procedural impropriety. For a decision to be subject to Judicial Review, it must affect a person's enforceable private law rights or deprive them of a legitimate expectation. 30.Examining the ground of illegality, the Ex-parte Applicant contends that the Principal Land Registrar and the Director of Surveys lacked the statutory authority to alter or affect her registered title under the provisions of the Land Registration Act. However, a meticulous examination of the underlying administrative process reveals that the administrative officers did not purport to revoke or cancel a Certificate of Title, an act which would strictly fall within the judicial province. 31.Instead, the statutory authorities exercised their inherent mandate to rectify and cancel corrupted, inaccurate, and unprocedural survey records and deed plans that had facilitated the fictitious amalgamation of two distinct parcels of land, L.R. 76/762 and L.R. 76/763, held under separate ownerships. The surveyor responsible for generating the amalgamation records explicitly admitted in official correspondence that combining properties under different proprietorships was completely unprocedural and recommended the revocation of the survey information ELCLJR NO. E001 OF 2026 14 | P a g e

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under F.R. No. FNO/66. Public administrative bodies possess statutory authority to manage, regulate, and correct public land records when systemic errors, irregularities, or illegalities are brought to light. An administrative authority that acts to preserve the integrity of public registries by rectifying unprocedural technical entries does not commit an ultra vires act; rather, it acts to uphold the rule of law. 32.On the limb of procedural impropriety, the Ex-parte Applicant argues that her rights under Article 47 of the Constitution and the Fair Administrative Action Act were violated when the administrative panel purportedly transformed a routine appearance into a full hearing without adequate notice. The fundamental obligation under the rules of natural justice is to guarantee that a party whose rights may be adversely affected is afforded adequate notice of the case against them and a fair opportunity to present their defense. As established in the landmark English authority Ridge v. Baldwin [1964] AC 40, the duty to act judicially and observe natural justice applies broadly to administrative bodies making determinations that impact individual rights. Lord Reid observed in that case that: "The rule audi alteram partem has been applied to a vast variety of situations ... a decision given without a hearing is void." 33.Contrary to the Applicant's assertion of a procedural ambush, the evidence demonstrates that she was served ELCLJR NO. E001 OF 2026 15 | P a g e

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with summons, appeared before the Land Registrar on 15/04/2025 where the underlying survey dispute was outlined, and thereafter attended a full inter-partes hearing on 27/05/2025 alongside her legal Counsel, where all affected parties, including the administrators of neighboring estates and local administration, presented their arguments. The law does not mandate that administrative proceedings mimic every strict formality of a full-scale trial; it demands substantial compliance with procedural fairness, adequate notice, and the right to be heard. The record before this Court confirms that the Applicant was afforded a meaningful opportunity to present her documentation and state her case prior to the delivery of the decision on 2/07/2025. 34.Similarly, the challenge based on irrationality cannot stand. The Respondent’s determination was not made arbitrarily or on a whim; it was founded on expert technical verification from the Director of Surveys, historical survey maps, and admissions from the involved surveyor confirming that two separate properties belonging to distinct individuals had been improperly amalgamated into a non-existent entity. A decision supported by documentary evidence, technical reports, and multi-departmental consultations cannot be characterized as perverse or defying logic. The Applicant's true grievance lies with the substantive outcome of the administrative investigation rather than the legality of the process itself. ELCLJR NO. E001 OF 2026 16 | P a g e

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35.Turning to the specific prayer for an order of certiorari, the prerogative writ of certiorari is designed to bring up the record of an inferior tribunal or public authority into the High Court to be quashed where the decision-maker acted without jurisdiction, in excess of jurisdiction, in breach of natural justice, or where there is an error of law apparent on the face of the record. The classic formulation of the scope of certiorari was enunciated by Lord Atkin in Rex v. Electricity Commissioners [1924] 1 KB 171, where he stated: "Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs." 36.Further, on the scope of certiorari regarding errors on the face of the record, Lord Goddard C.J. in R v. Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 KB 338 observed: "The writ of certiorari is a very old and high prerogative writ drawn up for the purpose of enabling the Court of King's Bench to control the action of inferior Courts and to make it certain that they shall not exceed their jurisdiction... if the tribunal states its reasons in the order and ELCLJR NO. E001 OF 2026 17 | P a g e

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those reasons are wrong in law, certiorari lies to quash the decision." 37.In the present case, the Ex-parte Applicant has failed to establish that the Respondent or the Director of Surveys acted outside their statutory mandate, breached the rules of natural justice, or committed a patent error of law on the face of the Ruling. The administrative authorities merely cancelled defective survey records and reinstated the preexisting survey numbers to reflect the true position on the ground. Consequently, the threshold for issuing an order of certiorari has not been satisfied. 38.Regarding the prayer for an order of prohibition to restrain the Respondent from taking further action or conducting proceedings in respect of L.R. 76/882, the legal mechanism of prohibition serves a fundamentally different purpose from certiorari. Prohibition is a preventive, prospective remedy intended to forbid an inferior tribunal or administrative body from continuing proceedings that are in excess of jurisdiction or in contravention of the law. It does not operate retroactively to quash a decision that has already been made and concluded. This distinction was authoritatively settled by the Court of Appeal of Tanzania in Grand Hotel Ltd v. Commissioner for Income Tax [1999] 1 EA 111, where the Court addressed the prospective nature of prohibition, holding: ELCLJR NO. E001 OF 2026 18 | P a g e

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"Prohibition is an order issuing out of the High Court preventing an inferior Court or tribunal or body from doing something which it has no jurisdiction contrary to to do the or from rules of doing something natural justice... Prohibition looks to the future; it is not meant to undo what has already been done." 39.Because the administrative panel concluded its inquiry and delivered its formal Ruling on 2/07/2025, cancelling the subject survey records, the administrative process was complete and spent. Prohibition cannot issue to arrest an act that is already an accomplished fact. 40.The Ex-parte Applicant has failed to establish any grounds of illegality, procedural impropriety, or irrationality, and has failed to satisfy the legal requirements for either certiorari or prohibition. The application for Judicial Review is entirely unmeritorious and must fail. 41.I therefore make the following final orders: i) The Ex-parte application Applicant's Notice of Motion dated 26/01/2026 seeking Judicial Review Orders of Certiorari and Prohibition is hereby dismissed in its entirety. ii) Costs of this Judicial Review Application are awarded to the 1st Interested Party, to be borne by the Ex-parte Applicant. It is so ordered. ELCLJR NO. E001 OF 2026 19 | P a g e

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DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 21ST DAY OF SEPTEMBER 2026. ………………….. MOGENI J JUDGE In the presence of: Mr. Aluoch holding brief for Mr. Mugere for the Applicant Respondents – Absent Ms. Wambui for the Interested Party 2nd Interested Party - Absent Mr. Melita - Court Assistant ………………….. MOGENI J JUDGE ELCLJR NO. E001 OF 2026 20 | P a g e

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