Jane Wangechi Wariari (suing as the legal representative of the estate of Hiram Ndung’u Ng’ayu Deceased) v Registrar Nyeri & another [2015] KECA 424 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a Land Registrar cannot cancel your title through a gazette notice unless the law specifically gives that power.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What is the scope of judicial review proceedings?
- 2.Did the learned Judge exercise his discretion properly in dismissing the application?
Key legal issues
#Scope of the Land Registrar's power under section 17 of the RLA
Section 17 only permitted cancellation of obsolete entries; the Registrar acted in excess of jurisdiction in purporting to cancel a vested title protected by sections 27, 28, 142 and 143 of the RLA.
The two Gazette notices were anchored on section 17 RLA, which donated power to cancel or delete obsolete entries. Once Hiram was registered, his rights were protected under sections 27 and 28 and could be defeated only through sections 142 and 143. In the absence of demonstration that Hiram's title had become obsolete, the Registrar had no power to rectify the register as she did, hence her action was in excess of jurisdiction.
Whether certiorari should be withheld because the dispute involved contested facts requiring viva voce evidence
No; certiorari should have been granted because the decision was made in excess of jurisdiction, and granting it would not foreclose parties from litigating factual issues in an appropriate forum.
The trial judge found the Registrar lacked power but nonetheless withheld certiorari on the ground that affidavits could not be tested by cross-examination. The Court held grounds 4(a), (d) and (e) fell within judicial review while grounds 4(b) and (c) belonged to civil law; the reviewable grounds could be dealt with as such, and allowing certiorari would not shut out litigation of issues requiring viva voce evidence before an appropriate forum.
Whether the relief sought in the substantive Notice of Motion was at variance with the statement of facts contrary to Order 53 rule 4(1) of the Civil Procedure Rules
No variance existed; the decision sought to be quashed was clearly identified as that in Gazette Notice No. 2410 of 11th March 2011, and the omission of the Gazette notice number in paragraph 3 of the statement caused no prejudice.
Order 53 rule 4(1) bars reliance on grounds or relief not set out in the statement of facts. From the ex parte application to the substantive motion, the decision sought to be quashed was that in Gazette No. 2410. Taking a broad view of justice under the overriding objective, and noting the judge had himself excused a similar irregularity, the Court found no prejudice from the omission to specify the Gazette notice number.
Effect of quashing Gazette Notice No. 2410 on the subsequent Gazette Notice No. 5171 and the title issued to Peter
Quashing the first notice renders the second notice otiose and the Registrar's actions based on both notices null and void.
The appellant argued that quashing the first notice would invalidate the second, which flowed directly from it. The Court accepted this, holding that the granting of certiorari to quash Gazette Notice No. 2410 would render Gazette Notice No. 5171 otiose and nullify the actions of the Registrar based on those notices.
Legal principles established
#- The Registrar's power under section 17 of the RLA was limited to cancellation or deletion of obsolete entries and cannot be used to defeat a proprietor's vested title; rectification affecting proprietary rights is governed by sections 142 and 143 of the RLA.
- Certiorari will issue where a decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with.
- The Court of Appeal interferes with a discretionary decision of the High Court only on established principles: misdirection on law, misapprehension of facts, taking into account irrelevant matters, failing to take into account relevant considerations, or that the decision was plainly wrong.
Court orders
#- 1.Appeal allowed
- 2.Orders of the learned Judge made on 5th November 2014 set aside and substituted with an order of certiorari quashing Gazette Notice Number 2410 of 11th March 2011
- 3.Appellant to have costs of both the appeal and the court below, to be borne by the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- Misc. Appl. No. 136 of 2011 (JR)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Appellate Jurisdiction Act, Cap 9 (sections 3A and 3B cited for the overriding objective)
Relief refused
#Relief of mandamus
Abandoned by the appellant at the hearing of the appeal
Costs
The Appellant will have costs of both the appeal and of the court below to be borne by the 1st Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We set aside the orders of the learned Judge made on the 5th day of November, 2014 and substitute them with an order of certiorari to issue quashing Gazette Notice Number 2410 of 11th March, 2011.
The Appellant will have costs of both the appeal and of the court below to be borne by the 1 st Respondent.
The Registrar therefore acted in excess of the powers donated to her by section 17 of the RLA.
Judicial review is concerned not with private rights or the merits of the decision but with the decision making process.
the granting of an order of certiorari to quash Gazette Notice No. 2410 would render Gazette Notice No. 5171 of 17th May, 2011 otiose and the actions of the Registrar based on those notices null and void.
Issues in the judgment
#Judgment states the register was opened on 31st July, 2013 but also that a certificate of lease was issued to Peter Mahugu on 1st August, 1983; the date 2013 appears to be a typographical error for 1983.
Gazette Notice No. 2410 is described as cancelling after the expiry of sixty (30) days - 'sixty' and '30' conflict.
The date of the second Gazette Notice is inconsistently given as 13th May 2011 and 11th May 2011 in the 1st Respondent's submissions, and as 17th May 2011 in the Court's disposition.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Wangechi Wariari (suing as the legal representative of the estate of Hiram Ndung’u Ng’ayu Deceased) v Registrar Nyeri & another [2015] KECA 424 (KLR)", Case Analysis (2015). Civil Appeal No. 5 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/424/eng@2015-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.