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Summary:

The case of the Republic vs. Kwale Land Registrar, ex parte Patrick Hawkes Karanja Kinyanjui involved a dispute over the ownership of Land Parcel No. Kwale/Galu Kinondo/416 between Patrick Hawkes Karanja Kinyanjui (the ex-parte applicant), on the one hand, and Swalehe Salimu Kabila (the interested party), with the Land Registrar, Kwale (the respondent) on the other hand. The ex-parte applicant sought judicial review orders of certiorari and prohibition to quash the decision of the respondent to register the interested party as the owner of the land and to prohibit further registration of the land without his concurrence. The ex-parte applicant was partially successful in his bid. The advocate for the ex-parte applicant was Okello Kinyanjui and Company LLP.

Background:

The ex-parte applicant was duly registered as the owner of Parcel No. Kwale/Galu Kinondo/416 (suit property) on 24^th April, 1978 and issued with a title the same day. This was after purchasing the suit property from one Salim Abdalla Mwachatamu (the deceaced). The ex-parte applicant had since then enjoyed the use of the suit property without any incidents by charging it as security for a loan in the same year which was subsequently discharged in 2016 on successful repayment and paying of land rates. Before payment of the  land  rates he conducted searches in 2016, 2021, 2023 which  showed him as the  registered owner of the  suit property and  had,  for the  year  2024,  been cleared by the  respondent to pay rates for the  same.

In 2023 the ex-parte applicant was informed by the respondent that the suit property had two green cards. Apprehensive of fraudulent dealings the ex-parte applicant wrote to the respondent for a restriction to be placed against the suit property and also published a caveat emptor in the Daily Nation of 18^th of November, 2023. The ex-parte applicant also wrote to the Directorate of Criminal Investigations (DCIO) notifying the DCIO of the issue. Also in the company of one Abraham Kambi Masha the ex-parte applicant handed over to the respondent copies of certificate of title, green card and the caveat

Thereafter, the ex-parte applicant conducted a fourth search when he found that the interested party was registered as the owner of the suit property. Upon this discovery, the ex- parte applicant wrote to the Cabinet Secretary Ministry of Lands detailing the fraud. When he did not receive any reaction from the Cabinet Secretary, the ex-parte applicant filed, in the Environment and Land Court (the court) an application for judicial review orders of certiorari and prohibition to quash the decision of the respondent to register the interested party as the owner of the land and to prohibit further registration of the land without the ex-parte applicant’s concurrence.

Key Issues:

The court identified the following key issues:

1. Whether the orders sought by the ex-parte applicant can be issued under judicial review proceedings.
2. Whether the judicial review orders of certiorari and prohibition are available to the ex-parte applicant.
3. Who bears the costs of these proceedings?

Analysis and Determination:

For the sake of brevity, we will analyse the issues raised and the determination of the court on the same.

1. Judicial Review Proceedings:

• The court found that judicial review is concerned with the decision-making process rather than the merits of the decision itself. The court examined whether the decision was made within the bounds of the law, whether the decision-maker had jurisdiction, and whether the rules of natural justice were followed.

• The ex-parte applicant alleged that the respondent acted unlawfully by registering the interested party as the owner of the land without giving him a hearing, thereby violating his right to fair administrative action under Article 47 of the Constitution.

• The court found that the respondent failed to consider the existence of two green cards (one in favor of the ex-parte applicant and another in favor of the deceased before registering the land in the name of the interested party. This failure to consider relevant information and to notify the ex-parte applicant of the registration process violated the principles of natural justice and fair administrative action.
• Availability of Certiorari and Prohibition:

• Certiorari: The court found that the respondent’s decision to register the interested party as the owner of the land was procedurally flawed and violated the ex-parte applicant’s right to be heard. Therefore, the court granted an order of certiorari to quash the decision of the Land Registrar made on 9^th November 2023, and to quash the title deed issued to interested party.

• Prohibition: The court also granted an order of prohibition to prevent the respondent from registering any further transactions with respect to the land until the ownership dispute is resolved in an appropriate forum. This order is intended to preserve the status quo pending the final determination of the ownership of the land.

• Costs:

• The court ordered that each party bears its own costs, given the complexity of the case and the fact that the final determination of ownership is yet to be made.

Final orders Issued:

1. Certiorari: The decision of the Land Registrar to register Swalehe Salimu Kabila as the owner of Kwale/Galu Kinondo/416 on 9^th November 2023 is quashed.

• Certiorari: The title deed issued to Swalehe Salimu Kabila for Kwale/Galu Kinondo/416 is quashed.

• Prohibition: The Land Registrar is prohibited from registering any further transactions with respect to Kwale/Galu Kinondo/416 until the ownership dispute is resolved.

• Referral: The parties are directed to take the dispute to an appropriate forum (e.g., a civil court) for a final determination of the legitimate owner of the land.

• Costs: Each party to bear its own costs.

• Leave to Appeal: Leave to appeal is granted if required.

Conclusion:

The court found that the respondent’s decision to register the interested party as the owner of the land was procedurally unfair and violated the ex-parte applicant’s right to be heard. The court granted the orders of certiorari and prohibition to quash the registration and to prevent further transactions until the ownership dispute is resolved. However, the court emphasized that the final determination of ownership must be made in an appropriate forum, as judicial review is not suited for resolving substantive disputes over land ownership.

Our comments:

The decision of the court was fair, but there are certain concerns that may be the subject of an appeal.

1. The court granted orders that were not sought by any of the parties, least of all the applicant, i.e. directing the dispute to “an appropriate forum” for a final determination of the legitimate owner of the land. This decision is, in our humble view, incorrect for the following reasons:
   • Neither the ex-parte applicant nor any other party asked for the said order. In granting the said order the court acted without jurisdiction, because the Court of Appeal has stated in various cases, especially Kenya National Examination Council vs. the Republic, ex parte Njoroge and ors (which was cited to the court) that a court cannot grant orders that were not sought.
   • The court directed the parties to go to an “appropriate forum”. This is concerning because article 162 (2) of the Constitution as read with article 165 of the Constitution of Kenya, allows Parliament to create an Environmental and Land Court with the same status as the High Court. Parliament, in following the direction of the Constitution of Kenya, enacted the Environment and Land Court Act, 2011, which created the Environment and Land Court, whose duty it is to deal with disputes in land.
2. The court granted orders that were not sought by any of the parties, least of all the applicant, i.e. prohibiting the respondent from registering any further transactions with respect to Kwale/Galu Kinondo/416 until the ownership dispute is resolved. What the ex-parte applicant prayed for was for a prohibition prohibit further registration of the land without his concurrence This decision of the court is, in our humble view, incorrect for the following reasons:
   • Neither the ex-parte applicant nor any other party asked for the said order. In granting the said order the court acted without jurisdiction, because the Court of Appeal has stated in various cases, especially Kenya National Examination Council vs. the Republic, ex parte Gathenji and others [1997] eKLR that a court cannot grant orders that were not sought.
   • The court makes the unfortunate assumption that there is a land dispute to be determined. Once the court quashed the interested party’s title, the said title no longer exists and there cannot be any dispute to be resolved between the ex-parte applicant and the interested party about a land that the interested party does not own.
   • No order was sought from the court to determine the ownership of the land. Ownership of land is provided by article 40 of the current Constitution of the Republic of Kenya, section 75 of the former Constitution of the Republic of Kenya and the relevant provisions of the Land Act. Since the ex parte applicant’s title has not been quashed, only the ex-parte applicant owns the suit land and, as such, the courts implication that there exists a dispute on the same is an implication made without jurisdiction.
3. The court appears to have, unjustifiably, not resolved the issues of fraud raised by the parties on, with respect, the incorrect ground that allegations of fraud must be tested viva voce including the calling of witnesses from the relevant government agencies involved in land registration among others. This decision appears to be incorrect for the following reasons:
   • While it may be correct, that fraud is decided on a higher standard than on a balance of probabilities, it is also true that it should not be decided on proof beyond a reasonable doubt. The court may, by the decision it made, be creating a wrong precedent that issues of fraud, especially in judicial review cases, cannot be determined by the documents before courts and that precedent, is, in our humble view, incorrect.
   • Kenyan law, at section 8 of the Law Reform Act, Cap 26, provides that “[i]n any case in which the High Court in England is, by virtue of the provisions of section 7 of the Administration of Justice (Miscellaneous Provisions) Act, 1938 of the United Kingdom empowered to make an order of mandamus, prohibition or certiorari, the High Court [including the Environment and Land Court] shall have power to make a like order.” This position was affirmed by the Court of Appeal in Kenya National Examination Council vs. the Republic, ex parte Gathenji and others (supra).
   • The High Court of Justice in England has, in cases such as R. vs. Fullham, Hammersmith and Kensington Rent Tribunal, ex parte Gormly 1951 2 ALL ER 1030, R. vs. West Sussex Quarter Sessions ex parte Albert and Maud Johnson Trust Ltd 1973 3 ALL ER 289 and R. vs. Woverhampton Crown Court ex parte Crofts 1983 1 ALL ER 204 held that judicial review orders of certiorari can be issued for fraud or perjury in the decision making process. In this regard, it was, in our view, the duty of the court to resolve the allegations of fraud and make a determination on the same.

On the positive side, albeit with the defects already adumbrated on the court showed a willingness to defend the Constitutional right to ownership of land and the Constitutional right to fair administrative action. The court has also spelt out a registrar in land must make considerations of all relevant facts before purporting to register someone as an owner of a piece of land.

The decision is available here.