Case ID:176099

Republic v Land Registrar Thika Ex parte Maria Wairimu Michael; Wanjiku Mwaura (Interested Party) [2021] eKLR

Case Metadata

Case Number:

Judicial Review Application 11 of 2019 (Formerly Kiambu Judicial Review 31 of 2017)

Parties:

Republic v Land Registrar Thika Ex parte Maria Wairimu Michael; Wanjiku Mwaura (Interested Party)

Date Delivered:

27 May 2021

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Judgment

Judge(s):

Lucy Nyambura Gacheru

Citation:

Republic v Land Registrar Thika Ex parte Maria Wairimu Michael; Wanjiku Mwaura (Interested Party) [2021] eKLR

Advocates:

Mr. Ochwa for the exparte Applicant

Court Division:

Environment and Land

County:

Kiambu

Advocates:

Mr. Ochwa for the exparte Applicant

History Advocates:

One party or some parties represented

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

JUDICIAL REVIEW APPLICATION NO. 11 OF 2019

(FORMERLY KIAMBU JUDICIAL REVIEW NO. 31 OF 2017)

IN THE MATTER OF AN APPLICATION FOR LEAVE TO COMMENCE

PROCEEDINGS IN THE NATURE OF JUDICIAL REVIEW

AND

IN THE MATTER OF CONTRAVENTION OF ARTICLE 40 OF

THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF CONTRAVENTION OF SECTIONS 14,24(a),

25(1),26(1) &79 OF THE LAND REGISTRATION ACT(NO.3 OF 2012)

AND

IN THE MATTER OF IRREGULAR CANCELLATION/REVOCATION

OF TITILE DEED TO RUIRU/RUIRU EAST BLOCK 3/308

BETWEEN

REPUBLIC..........................................................................APPLICANT

VERSUS

THE LAND REGISTRAR THIKA....................................RESPONDENT

EX PARTE MARIA WAIRIMU MICHAEL

WANJIKU MWAURA...........................................INTERESTED PARTY

JUDGMENT

By an

Amended Notice of Motion

Application dated

26

th

March 2018

, the Ex-parte Applicant sought for the following orders against the Respondent :-

1. That an order of Certiorari to remove into this Court and quash the decision of the Respondent, cancelling/revoking the title deed for parcel No.

RUIRU/RUIRU EAST BLOCK 3/308

issued to the Applicant.

2. An Order of Mandamus compelling the Respondent to restore in the Land Register and all other relevant documents held at Thika Land Registry, the Applicant as the registered absolute proprietor of the title to parcel No.

RUIRU/RUIRU EAST BLOCK 3/308

and removing the restriction placed on the subject property on the

20

th

March 2017

and

23

rd

May 2017.

3. That costs of and incidental to the application be provided for.

4. That such further and other reliefs that this Honorable Court may deem just and expedient to grant.

The Application is premised on grounds stated in the Statutory Statement and the Verifying Affidavit of

Maria Wairimu Michael,

dated

11

th

October 2017,

in which the Applicant averred that she purchased land parcel No.

Ruiru/Ruiru East Block 3/308,

and a title deed was issued on

13

th

February 2017

. That on around the

22

nd

July 2017

, the Respondent purported to cancel/revoke the said title claiming that the registered owner had reported that she did not sign the transfer forms in favor of the Applicant.

That the Respondent action was without jurisdiction, ultra vires, unreasonably, irrationally and unprocedurally when it purported to cancel/revoke the title deed issued to the Applicant. The Ex-parte Applicant averred that on

23

rd

February 2017,

she conducted an official search of parcel No.

Ruiru/Ruiru East Block 3/308,

and the search confirmed that she was the registered owner and as she was about to commence subdivision, she perused the documents at the lands office Thika and learned that a restriction had been placed on the subject property restraining any dealings on the said parcel of land due to the fact that her title had been issued on the strength of fake documents.

That on

22

nd

June 2017

, her title had been revoked/canceled by the

Respondent and one

Wanjiku Mwaura

restored as the registered proprietor. That she has been advised by her Advocates on record which information she believes to be true that the Respondent canceled/ revoked her title to the subject property without giving her a chance to be heard and such actions are against rules and principles of natural justice and thus ought to be quashed. That no illegality nor procedural impropriety was committed in the acquisition of the suit property.

The Application is opposed and the Respondent filed

Grounds of Opposition

dated

19

th

March 2018,

and averred that the Ex parte Applicant’s Application is tainted with discrepancies and is questionable. Further, that the Ex parte Applicant has approached this Honorable Court with unclean hands as the attached copy of

green card

annexure MW 3 No. 8 and 9 of the title deed is indicated to belong to one

Martha Wairimu Macharia,

and not the Ex parte Applicant. That the National Identification Numbers of

Martha Wairimu Macharia

and the Ex Parte Applicant is shown to be the same being No.

11035923,

yet their names are for two individuals. It was its contention that the name of the Ex Parte Applicant and the title deed that was cancelled was for

Martha Wairimu Macharia

and hers. It was averred that the title deed purportedly belonging to the ex parte applicant was issued on the same day as that one of

Martha Wairimu Macharia,

to whom title has been cancelled.

The Application was canvassed by way of written submissions and the Ex parte applicant through the

Law Firm of

Mohammed &Kinyanjui Advocates

filed her submissions dated

20

th

November 2020,

and submitted that the Land Registrar acted in excess of and without jurisdiction in purporting to cancel the Exparte Applicant’s title and restoring one

Wanjiku Mwaura,

as the registered proprietor of the said parcel of land. It was further submitted that on the issue of discrepancy, in the names as they appear on the title document and on the green card, was an oversight on the part of the Registrar.The Ex parte Applicant relied on various decided cases including the case of

Republic …v… Land Registrar, Taita Taveta District & others (2005) eKLR,

amongst other precedents.

The Interested Party though duly served by way of substituted service through the Newspaper advertisement never entered appearance. The Respondent did not file written submissions either.

The Court has carefully considered the Exparte Applicant’s Judicial Review and the annextures thereto. The Court has also considered the

Grounds of Opposition

by the Respondent, the written submissions, cited authorities and the relevant provisions of law and the Court renders itself as follows:-

The issues for determination are;

a) Whether the Ex Parte Applicants has met the grounds for granting of Judicial Review Order of

Certiorari

and

Mandamus

.

b) If so, whether the Amended Notice of Motion application dated

26

th

March 2018

is merited.

c) Who is entitled to costs of these proceedings.

The purpose of Judicial Review was set out in the case of

Municipal Council of Mombasa…Vs…Republic, Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007(2002) eKLR

, where the Court of Appeal held that:-

“The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at. Did those who make the decision have the power i.e the jurisdiction to make it. Were the persons affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters. These are the kind of questions a Court hearing a matter by way of judicial review is concerned with and such Court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal Court over the decider would involve going into the merits of the decision itself - such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review”

.

Further circumstances under which orders of Judicial Review can be issued were elaborated

by

Justice Kasule in the Uganda case of Pastoli …Vs..Kabale District Local Government Canal & Others (2008) 2EA 300 at pages 300-304.

“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.

Illegality

, is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or

ultra vires

or contrary to the provision of a law or its principles are instances of illegality----.

Irrationality

, is when there is such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.

Procedural impropriety,

is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice to act or to act with procedural fairness towards one to be affected by the decision – it may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislature instrument by which such authority exercises jurisdiction to make a decision

.

(Al-Mehidswi…Vs…Secretary of State for the Housing Department (1990) AC 876”

.

So what does the Judicial Review orders entails? This was elaborated in the case of

Kenya National Examination Council…Vs…Republic Exparte Geoffrey Gathenji & 9 Others, Nairobi Civil Appeal No.266 of 1996

, where the Court held that:-

“That now bring us to the question we started with, namely the efficacy and scope of mandamus, prohibition and certiorari. These remedies are only available against public bodies such as the council in this case. What does an Order of Prohibition do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules or natural justice. It does not. However, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See Halsbury’s Law of England, 4

th

Edition vol.1 at Pg.37 paragraph 128.”

From the foregoing cases, the applicable law in cases of Judicial Review have already been established and this Court will now consider the above applicable law and then juxtapose it with the available facts to determine whether the

Exparte Applicant

is

deserving of the orders sought.

a)

Whether the Ex Parte Applicants has met the grounds for granting of Judicial Review Order of Certiorari and Mandamus

In the case the

Kenya National Examination Council… Vs… Republic (Exparte Geofrey Gahenji & Another (Supra),

the Court clearly stated that the Order of C

ertiorari

can quash a decision already made as an Order of

Certiorari

will issue if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with. So have the

Exparte Applicant

established existence of the above condition to warrant this Court quash the decision of Respondent and compel it to do what is required of it?

It is the Ex Parte Applicant’s contention that the Respondent acted in excess of its Jurisdiction, first when it purported to cancel her title deed without giving her a chance to be heard and further acting

ultra vires

in cancelling her title which powers it did not have. In the case of

Republic…Vs…The Honourable The Chief Justice of Kenya & Others …Vs…exparte Moijo Mataiya Ole Keiuwa, Nairobi HCM CA No.1298 of 2004

, the Court held that:-

“The rules of Natural justice are minimum standard of fair decision making imposed by the common law on persons, or bodies that are under a duty to act judicially”

.

The Respondent has not denied cancelling and revoking the title held by the Ex Parte Applicant. The contention by the Ex Parte Applicant that she was never notified before the revocation have not been rebutted as the burden shifted to the Respondent to prove that rules of natural justice were followed. Though the Respondent has averred that the green card and the title deed bear different names, the Court notes that this goes to the merit of the case which a Judicial Review Court does not have powers to deal with the same. In the case of

Republic …Vs…Kenya Revenue Authority Exparte Yaya Towers Ltd (2008) eKLR

, the Court held that:-

“The remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected…..”

The Respondent having not given the Ex Parte Applicant a chance to be heard also acted

ultra vires

in revoking the Applicant’s title. The Court has seen the green card in which the Respondent allegedly cancelled and revoked the title held by the Applicant. In the case of

Republic ….Vs… Land Registrar Taita Taveta District & another [2015] eKLR

the Court held that;

“It is now accepted that the Registrar had no jurisdiction to revoke titles to land under the Registered Land Act or the Registration of Titles Act. In this regard, I reiterate my holding in Republic v. The Registrar of Titles, Mombasa & 2 Ors ex Parte Emfill Ltd., [2012] eKLR which, as shown below, the Court of Appeal approved-

“For these reasons, I find that the government cannot revoke title to land even “for public need or interest” or for alleged illegality. The Government is obliged to move the Court for appropriate orders to revoke, cancel or rectify title in such circumstances. A unilateral decision published in the Gazette will not do. The considerations of public interest such as presented by the Respondent in this proceedings may only be used by the Court in an appropriate case in making an order for cancellation of title or in authorizing, subject to due compensation, the compulsory acquisition or take-over of the private property.”

In the circumstances of this case, I find that the Government should have moved the Court, which has jurisdiction to invalidate titles that are obtained by fraud, for orders for the revocation of the Applicant’s titles on the ground that they were fraudulent and illegal as alleged in the Gazette Notice No 17714 of 2010. Having chosen to revoke the titles without jurisdiction under the law, the decision of Registrar is subject to quashing by an order of Certiorari for being

ultra vires

the Registered Land Act cap. 300 under which the parcels of land were registered.

It is thus not in doubt that the Respondent did not have jurisdiction to cancel and or revoke the Applicant’s title. This Court therefore finds and holds that the Respondent acted

ultra vires

and therefore had no jurisdiction.

Having found that the

Exparte Applicant

was not accorded an opportunity to be heard and was condemned unheard, as envisaged in the doctrine of Natural justice, this Court also having made a finding that the Respondent acted

ultra vires

, the Court further finds that the

Exparte Applicant

has established the

threshold for granting of Judicial Review Orders

of Certiorari and Mandamus.

b)

If so, whether the Amended Notice of Motion application dated 26

th

March 2018 is merited

.

The Exparte Applicant is seeking an Order of Judicial Review of

Certiorari

and

Mandamus

to quash the decision of the Respondent and an Order of Mandamus to have the register restored.

The Court has held that the Respondent acted without jurisdiction and did not give the

Exparte Applicant

an opportunity to be heard, thus it is only fair that the said decision is quashed .Having now carefully considered the facts of this case and the available provisions of law, the

Court finds that the Exparte Applicant is deserving of the orders sought and therefore the Amended Notice of Motion Application is merited

c)

Who is to bear costs of these proceedings?

Ordinarily, costs do follow the event.

Section 27

of the

Civil Procedure Act

provides that

‘costs are granted at the discretion of the Court.

Therefore

the Exparte Applicant

is entitled to the costs of these proceedings.

The upshot of the foregoing is that the Court finds and holds that the

Exparte Applicant

is

deserving of the orders sought in the Amended Notice of Motion

dated

26

th

March 2018

and

allows the said Amended Notice of Motion application entirely in terms of prayers no. 1 and 2 with costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 27

TH

DAY OF MAY 2021.

L. GACHERU

JUDGE

27/5/2021

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting Court operations due to the

COVID-19

Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on

15

th

March 2020

, this

Judgment

has been delivered to the parties online with their consents. They have waived compliance with

Order 21 rule 1

of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Ochwa for the exparte Applicant

No appearance for the Respondent

L. GACHERU

JUDGE

27/5/2021