George Kimani Kangethe v Land Registrar Kajiado & another [2018] KEELC 2308 (KLR)
The bottom line
#A Kenyan land registrar cannot cancel your title by gazette notice without first notifying you and giving you a hearing — that's unconstitutional.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether 1st Respondent's act of cancelling Petitioner's title contravened Article 40 and 47 of the Constitution
- 2.Whether the Petitioner's Constitutional Rights to own property have been violated
- 3.Whether the Petitioner is entitled to the reliefs sought in the Petition
Key legal issues
#Whether revocation of the Petitioner's title by gazette notice without notice or hearing breached Article 47
Yes - the revocation was procedurally unfair and unconstitutional; the gazette notice was quashed
The District Land Registrar, Kajiado gazetted the Petitioner's Certificate of Lease for revocation without notifying him or granting him an opportunity to be heard. The Respondents adduced no evidence that the Petitioner was notified prior to the gazettement. Applying Article 47 and Section 4(3) of the Fair Administrative Act, an administrator must give prior and adequate notice, an opportunity to be heard, and written reasons where administrative action adversely affects rights. The failure to do so rendered the decision procedurally improper and a violation of Articles 40 and 47.
Whether the Petitioner's title is valid and whether he is entitled to damages
Not determined - the Petitioner was directed to file a civil suit
The 1st Respondent contended that the title was unlawfully acquired over land reserved for public utility, and that ownership and damages require examination of witnesses and documents. The court agreed that a determination on the validity of the title and quantum of damages requires viva voce evidence which cannot be made on affidavit material in the petition. The Petitioner was therefore directed to institute a civil suit to prove validity of title and damages.
Legal principles established
#- A registered owner's title cannot be revoked by gazette notice without prior notice and an opportunity to be heard; such revocation breaches Articles 40 and 47 of the Constitution and is tainted with procedural impropriety
Court orders
#- 1.Petition dated 30th October, 2015 allowed in part
- 2.Gazette Notice Vol. CX II – No 124 dated 26th November, 2010 – No. 15581 cancelling the Petitioner's Certificate of Title quashed
- 3.Petitioner directed to institute a civil case to present evidence on validity of his title and damages
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 40 and Article 47 of the Constitution of Kenya, 2010 (petition for violation of fundamental rights); judicial review orders of certiorari, prohibition and mandamus
Relief refused
#Declaration that the Certificate of Lease is conclusive evidence of ownership and that the Petitioner is absolute and indefeasible owner of the suit property
Court found validity of title requires viva voce evidence which cannot be determined on affidavit material in the petition
Damages
To be determined in a civil suit where the Petitioner can present all evidence
Costs
No costs order recorded in the judgment
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.
It is against the foregoing that I find the Petition dated 30 th October, 2015 merited and allow it in accordance with the terms I have stated above.
I will proceed to quash the gazette notice Vol. CX II – No 124 dated 26 th November, 2010 – No. 15581, cancelling the Petitioner's Certificate of title as it violated his Constitutional rights under Article 40 and 47 of the Constitution and was tainted with procedural impropriety since the Petitioner was not accorded a hearing before the same was published.
Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision – a. prior and adequate notice of the nature and reasons for the proposed administrative action;
Issues in the judgment
#Conflicting gazette notice numbers: the Petition seeks quashing of gazette notice number 15584, while the court's quashing order refers to No. 15581, and the submissions also refer to Notice No. 15581
Judgment applies the Fair Administrative Act prospectively while acknowledging the action predated the Act: 'In so far as the actions complained of occurred in 2010 before the enactment of the Fair Administrative Act. I wish to refer to the provisions of the Fair Administrative Act at Section 4(3)'
The court states the Petitioner has been in possession since 1993 while the Petitioner's own affidavit avers he purchased in 2007 and obtained a certificate of lease in November 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Kimani Kangethe v Land Registrar Kajiado & another [2018] KEELC 2308 (KLR)", Case Analysis (2018). Petition dated 30th October, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2308/eng@2018-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.