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ELCPartially AllowedJudicial Review application (Notice of Motion dated 9th April 2024) - number not stated in judgment· [2025] KEELC 1261 (KLR)

Republic v Land Registrar Kwale; Kabila & another (Interested Parties) (Judicial Review Cause E001 of 2024) [2025] KEELC 1261 (KLR)

Environment and Land Court (not expressly stated in judgment)
17 March 2025
8,795 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~35 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a Kwale land title issued without hearing the competing claimant, but left the real ownership question to be decided in a full trial.

What this practically means

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Executive summary

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The exparte applicant sought certiorari to quash the Land Registrar Kwale's decision of 9th November 2023 registering Swalehe Salimu Kabila (the interested party) as proprietor of Kwale/Galu Kinondo/416, certiorari to quash the attendant title deed, and prohibition against further registrations, alleging the registration breached Articles 40 and 47 of the Constitution and natural justice. The applicant claimed he purchased the land from Salim Abdalla Mwachatamu in 1974, was registered and issued a title, charged the property in 1978 and discharged the charge in 2016. The respondent and interested party countered that the registry records showed only a green card opened under section 79 of the Land Registration Act used for a 1978 charge, that the deceased held the adjudicated title issued in 1981, and that the registration followed a Msambweni Kadhis court succession order vesting the property in the interested party as trustee for the heirs. Each side impugned the other's documents as forgeries, raising discrepancies in green card sizes, map sheets and transactions. The court held that although the applicant invoked the Constitution, merit review could not resolve the ownership dispute given unresolved fraud allegations requiring viva voce evidence in an appropriate forum. However, the registrar's failure to consider the admitted second green card in its own records and to give the applicant notice and a hearing breached Article 47 and section 4(3) of the Fair Administrative Action Act. Certiorari issued quashing the registration decision and title deed; a preservation order of prohibition against further transactions issued pending final determination of ownership; the parties were directed to an appropriate forum; and each party was ordered to bear its own costs, with leave to appeal granted.

Key legal issues

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01

Scope of judicial review - process versus merit review

Holding

The applicant approached the court under the Constitution alleging violations of Articles 40 and 47, which permits merit review, but the final ownership dispute cannot be resolved in judicial review proceedings.

Reasoning

The court traced the evolution of judicial review from the traditional process-focused view to the Supreme Court's recognition that constitutionalised judicial review may extend to merit review. However, given the mutually antagonistic fraud allegations, documentary discrepancies in green cards, sizes and map sheets, and the need for evidence from land registration agencies, merit review was inappropriate. The ownership dispute required viva voce testimony in an appropriate forum.

p. 10
02

Whether the respondent's registration of the Interested Party violated fair administrative action under Article 47

Holding

Yes. The respondent knew from its own records of the second green card in favour of the exparte applicant yet registered the Interested Party pursuant to the Kadhis court order without notice or hearing to the exparte applicant.

Reasoning

The registrar admitted in its replying affidavit that its records contained a green card opened for the exparte applicant. Ignoring this obligatory relevant consideration and mechanically obeying the Kadhis court order amounted to unwarranted adherence to a fixed principle. Section 4(3) of the Fair Administrative Action Act required prior notice and an opportunity to be heard. The failure breached Article 47 and warranted certiorari.

p. 14
03

Availability of certiorari and prohibition

Holding

Certiorari was available to quash the registration decision and title; prohibition was granted only as an interim preservation measure pending final determination of ownership elsewhere.

Reasoning

Relying on the Kenya National Examinations Council dictum, certiorari issues where a decision is made without jurisdiction, in excess of jurisdiction, or in breach of natural justice. The registration made without hearing the applicant breached natural justice. Prohibition in the absolute terms sought was refused because the applicant's ownership was not declared, but a preservation order was warranted given competing titles.

p. 10
04

Effect of alleged fraud and illegality

Holding

Fraud allegations by each side against the other could not be resolved in judicial review proceedings; however, nothing comes out of an illegality, rendering the registration a nullity for purposes of the application.

Reasoning

Both the respondent and interested party alleged the applicant's documents were forgeries, and the applicant alleged fraud against them. Citing Ratil Patel and Vijay Morjaria, fraud must be proved to a standard above balance of probabilities with particulars, requiring viva voce evidence. Separately, the Macfoy principle meant the impugned registration, being procedurally defective, was a nullity for purposes of the judicial review application.

p. 14

Legal principles established

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  • A land registrar performing statutory registration must consider relevant facts within its own records, including the existence of a competing green card, and afford notice and a hearing to affected parties before registering a transmission
  • Where a party approaches the court under constitutional provisions alleging violation of rights, the court may undertake merit review; under Order 53 alone it is confined to process review
  • Fraud must be pleaded and proved to a standard higher than a balance of probabilities and cannot be decided in judicial review proceedings without viva voce evidence

Court orders

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  1. 1.Order of certiorari quashing the decision of the Land Registrar Kwale made on 9th November 2023 to register Swalehe Salimu Kabila as owner of Kwale/Galu Kinondo/416
  2. 2.Order of certiorari quashing the title deed for Land Parcel No. Kwale/Galu Kinondo/416 issued to Swalehe Salimu Kabila
  3. 3.Parties to take the dispute to an appropriate forum where the legitimate owner of Land Parcel No. Kwale/Galu Kinondo/416 can be determined with finality
  4. 4.Proceedings filed pursuant to the court's direction shall not take away any defence a party may have against the same
  5. 5.Pending such determination, an order of prohibition prohibiting the Land Registrar Kwale from registering any transactions with respect to Kwale/Galu Kinondo/416
  6. 6.Each party to bear its own costs
  7. 7.Leave to appeal the judgment granted if required
Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules and Articles 40 and 47 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Land Registrar Kwale; Kabila & another (Interested Parties) (Judicial Review Cause E001 of 2024) [2025] KEELC 1261 (KLR)", Case Analysis (2025). Judicial Review application (Notice of Motion dated 9th April 2024) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1261/eng@2025-03-17

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