Abdallah Shikanda Hassan & 9 others v District Land Registrar – Kakamega & 2 others [2016] KECA 800 (KLR)
The bottom line
#Kenya's Court of Appeal voided a land boundary determination made without notice, a hearing, and by the wrong official.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether due process was observed in the determination of the boundary dispute, such that certiorari would be available if natural justice was breached
- 2.Whether the report the appellants sought to quash was the report of the Land Registrar, i.e. whether the Registrar's statutory power to fix boundaries under the repealed Registered Land Act could be delegated
Key legal issues
#Breach of natural justice in the fixing of land boundaries
Section 22 of the repealed Registered Land Act made it mandatory for the Registrar to give notice of intention to fix boundaries and an opportunity of being heard; no notice was exhibited and no hearing was accorded, so the process was flawed.
The court examined section 22(1) and (2) of Cap 300 which mandated notice to adjoining owners and occupiers and an opportunity of being heard before boundaries are fixed. The Land Registrar filed no response and no notice was exhibited to support the respondents' assertion. The Judge's finding that notice 'must have' been received was unsupported by evidence. Absence of notice and hearing breached the entrenched natural justice requirements, warranting certiorari.
Delegability of the Registrar's statutory power to fix boundaries
The power to fix boundaries was conferred on the Registrar as a delegate of the Chief Land Registrar; a delegate cannot delegate, so the report authored by Nicholas Shiguri of the District Survey Office was a nullity.
Section 3 read with section 7(4) of Cap 300 defines the Land Registrar as exercising delegated authority from the Chief Land Registrar. The determination of the boundary dispute was a matter for the Land Registrar himself as delegate. There was neither express nor implied statutory authority for re-delegation to a survey officer; the doctrine that a delegate cannot delegate (drawing on Wade's Administrative Law) rendered the report incompetent.
Availability of certiorari for breach of natural justice
Certiorari is available to quash a boundary determination made in contravention of natural justice, following Kenya National Examination Council v Republic Ex parte Geoffrey Gathenji Njoroge.
The court framed the first issue as whether due process was observed, invoking its own decision in the KNEC case which establishes certiorari as a remedy where a determination offends natural justice. Because the impugned report was made without the statutory notice and hearing, the learned Judge erred in declining to grant the order of certiorari.
Legal principles established
#- Where a boundary dispute is determined without the notice and hearing mandated by section 22 of the Registered Land Act, the decision is in breach of natural justice and certiorari lies to quash it.
- A statutory delegate cannot re-delegate; delegated authority cannot itself be delegated absent express or implied statutory authority.
- A party's mere presence when a survey is conducted does not amount to statutory notice of the intention to fix boundaries.
Court orders
#- 1.Appeal allowed
- 2.Ruling and orders of the High Court given on 24th July 2014 in Kakamega Judicial Review Case No. 37 of 2012 set aside
- 3.Substituted with an order allowing, with costs, the appellants' notice of motion dated 11th June 2012
- 4.Appellants to have the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- H.C.J.R. No. 37 of 2012
- Jurisdiction invoked
- First appeal / appellate jurisdiction of the Court of Appeal over the High Court's ruling in a judicial review matter (Constitution and Court of Appeal jurisdiction; the judgment does not state a specific constitutional article)
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.
In our judgment, the process leading to the impugned report was flawed and in breach of the principles of natural justice entrenched in section 22 of the repealed Registered Land Act.
A delegate cannot himself delegate. The land Registrar could not therefore delegate delegated authority.
His presence there does not, in our view, attest to notice having been given, for he could well have otherwise been legitimately on his property when he spotted the “officials” of the Lands office.
We substitute the same with an order allowing, with costs, the appellants’ notice of motion dated 11th June 2012. The appellants shall also have the costs of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdallah Shikanda Hassan & 9 others v District Land Registrar – Kakamega & 2 others [2016] KECA 800 (KLR)", Case Analysis (2016). Civil Appeal No. 71 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/800/eng@2016-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.