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Court of AppealDismissedCourt of Appeal at Mombasa Civil Appeal (not stated in extract; appeal against ruling of Emukule J in JR application)

Super Nova Properties Ltd & another v District Land Registrar Mombasa & 2 others; Kenya Anti-Corruption Commission & 2 others (Interested Parties) (Civil Appeal 98 of 2016) [2018] KECA 17 (KLR)

Court of Appeal of Kenya
19 April 2018
9,733 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed landowners' bid to reclaim Mombasa court precincts, confirming judges can weigh public interest when granting judicial review remedies.

What this practically means

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Executive summary

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The appellants, registered proprietors of two subdivisions of a Mombasa parcel reserved for the Judiciary and occupied by the Mombasa Law Courts (now 'Justice Towers'), challenged by judicial review a Gazette Notice revoking their titles. Emukule J found that the Land Registrar and Commissioner of Lands had no power to revoke a title without due process, but declined mandamus and prohibition on public interest and proportionality grounds, holding courts should not aid the perpetuation of illegalities. The Court of Appeal dismissed the appeal. First, it held the Judge was entitled to expand the grounds of judicial review beyond the common law principles, applying Articles 40(6), 47, 10, 73(1), 159(2) and 259 of the Constitution and Sections 7 and 11 of the Fair Administrative Action Act, which now subsume common law review into one constitutional system permitting aspects of merit review. Second, although judicial review cannot resolve contested title questions which belong to the Environment and Land Court, most facts here - that the land was public land reserved for the Judiciary and occupied by it - were uncontested, so the Judge could rely on unchallenged averments; having chosen the judicial review forum, the appellants could not complain of jurisdiction on appeal. Third, judicial review remedies are discretionary and not automatic; the Judge properly weighed acquiescence, futility, the registration of the premises in trust for the Judiciary, and public access to justice. The Court distinguished Bhangra Ltd, where active civil litigation and an injunction preserved the subject matter. The appellants were left free to pursue any claim for compensation before the Environment and Land Court. The appeal was dismissed with each party bearing its own costs given the public interest nature of the matter.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge acted without jurisdiction by inquiring into how the suit premises was acquired in judicial review proceedings, that question properly belonging to the Environment and Land Court
  2. 2.Whether the Judge erred in failing to exercise his judicial discretion in favour of the appellants despite finding that the Land Registrar had no power to revoke a title
  3. 3.Whether the Judge denied the appellants their constitutional right to a fair hearing and right to property

Key legal issues

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01

Whether a judge in judicial review proceedings may look beyond the traditional common law grounds and consider constitutional principles such as proportionality and public trust

Holding

The Judge was entitled to expand the grounds of judicial review beyond the common law 'three I's', applying Articles 10, 40(6), 47, 73(1), 159(2) and 259 of the Constitution and Sections 7 and 11 of the Fair Administrative Action Act.

Reasoning

The Constitution subsumes common law administrative review principles into Article 47 and the Fair Administrative Action Act, creating one system of law. Article 259 obliges courts to develop constitutional values, and the grounds of review were never a closed list. Where grounds such as proportionality apply, a greater intensity of merit review is permissible, though the court cannot substitute its own decision for that of the administrator.

p. 12
02

Whether the Registrar of Lands had power to revoke the appellants' titles by Gazette Notice

Holding

The Registrar and Commissioner of Lands had no power to revoke a registered title without due process and a court order; the revocation was ultra vires and the appellants were entitled to a hearing before revocation.

Reasoning

Under sections 142 and 143 of the repealed Registered Land Act only a court may cancel or rectify registration on grounds of fraud or mistake. The Judge's finding that the Registrar acted unlawfully and ultra vires was affirmed as correct, but the illegality of the revocation process did not of itself entitle the appellants to mandamus or prohibition.

p. 9
03

Whether the Judge erred by making a merit finding that the titles were illegally acquired in judicial review proceedings

Holding

Although contested issues of ownership belong to the Environment and Land Court, in this case the respondents' averments that the land was public land reserved for the Judiciary were largely uncontroverted, so the Judge could not be faulted for relying on them; the appellants, having chosen judicial review, could not raise jurisdiction for the first time on appeal.

Reasoning

Judicial review cannot settle contested matters of ownership, and uncontested facts need not be tested by cross-examination. Once the issuing authority disowned the titles as illegal, the burden shifted to the appellants to prove how they acquired public land; they neither challenged the evidence nor sought transfer to the ELC, so the Judge was merely persuaded by unchallenged averments.

p. 14
04

Whether the Judge failed to exercise his discretion in declining mandamus and prohibition despite finding the revocation unlawful

Holding

The Judge properly exercised his discretion in the public interest; the remedy was futile because the premises are registered in trust for the Judiciary and occupied by the 'Justice Towers' court building.

Reasoning

Remedies are discretionary and may be denied for unmeritorious conduct, acquiescence, waiver or futility. Public interest considerations, including access to justice, administrative chaos and inconvenience to third parties, outweighed the appellants' private interests under the proportionality test. Bhangra Ltd was distinguishable because there was active civil litigation and an injunction preserving the subject matter.

p. 15
05

Whether the appellants were denied a fair hearing and property rights under Articles 40 and 50

Holding

While the appellants were entitled to a hearing before revocation of their titles, that entitlement did not compel the grant of judicial review remedies; Article 40(6) provides no protection for unlawfully acquired property.

Reasoning

It was common ground that the suit premises was public land reserved for the Judiciary. Article 40(6) does not extend property rights to unlawfully acquired property. The court sympathised with the appellants but held equity suffers no wrong without a remedy, and their claim, if any, lies before the Environment and Land Court for compensation.

p. 3

Legal principles established

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  • The limits of judicial review have expanded under Article 47 of the Constitution and the Fair Administrative Action Act; a court may consider grounds beyond the common law principles of illegality, irrationality and procedural impropriety, including proportionality, public trust, accountability of public officers, justice and equity.
  • A Registrar of Lands has no power to cancel or revoke a registered title by Gazette Notice; only a court of law may cancel title on grounds of fraud or illegality.
  • Judicial review remedies are discretionary and not automatic; even where an administrative action is found unlawful, the court may decline remedies in light of public interest, proportionality, futility and the conduct of the applicant.
  • Where facts as to the validity of title are contested, the dispute is best litigated in the Environment and Land Court; a party who chose the judicial review forum cannot on appeal complain that the court lacked jurisdiction to resolve those contested issues.
  • An appellate court will not interfere with a judge's exercise of discretion unless satisfied the judge misdirected himself or was clearly wrong.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear its own costs in view of the public interest nature of the subject matter

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
High Court of Kenya at Mombasa
Judicial review application before Emukule J (number not stated)
Jurisdiction invoked
Appeal to the Court of Appeal against a High Court ruling in judicial review proceedings (Court of Appeal Rules, Rule 86(1) referenced); specific appellate provision not stated in the judgment.

Relief refused

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Orders of mandamus and prohibition restoring the appellants' names as proprietors of the suit premises

Judicial review remedies are discretionary, not automatic; public interest in preserving the land occupied by the Mombasa Law Courts/Justice Towers outweighed the appellants' private interests; the premises are now registered in trust for the Judiciary; the appellants may pursue any claim in the Environment and Land Court.

p. 16

Costs

Appeal dismissed with each party bearing its own costs in view of the public interest nature of the subject matter.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, we find no merit in this appeal which we order dismissed with each party bearing its own costs in view of the public interest nature of the subject matter.
p. 16Final orders - dismissal and costs
For now, the "Justice Tower" should be allowed to tower as the "temple of justice" and to fulfil the Constitutional mandate of accessing and affording justice to all.
p. 16Public interest in preserving judicial precincts
we find no fault that the Judge expanded the grounds for judicial review above the conservative grounds to include the principles of proportionality, public trust, accountability by public officers, justice and equity
p. 10Expanded scope of judicial review under the 2010 Constitution
The only institution with mandate to cancel a title to land on the basis of fraud or illegality is a court of law
p. 9Limits of the Land Registrar's powers
the remedies are not automatic or conjoined; each involves an exercise of discretion of the court seized of the matter and such discretion may only be disturbed if the appellate court is satisfied that the decision is clearly wrong because of misdirection or basing it on wrong conclusion or failing to consider matters which were relevant
p. 14Discretionary nature of judicial review remedies and appellate review of discretion

Issues in the judgment

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minor

The judgment's citation for the hotel case appears in two spellings - 'Kuntse' when cited by counsel and 'Kunste' in the court's own discussion; the correct rendering is unclear from the text alone.

minor

The judgment states the appellants sought three orders (certiorari, prohibition and mandamus) but the background describes only certiorari and mandamus in the motions.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Super Nova Properties Ltd & another v District Land Registrar Mombasa & 2 others; Kenya Anti-Corruption Commission & 2 others (Interested Parties) (Civil Appeal 98 of 2016) [2018] KECA 17 (KLR)", Case Analysis (2018). Court of Appeal at Mombasa Civil Appeal (not stated in extract; appeal against ruling of Emukule J in JR application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/17/eng@2018-04-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.