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ELCDismissedJudicial Review (Miscellaneous Application) - notice of motion dated 26/2/2013 (number not stated in judgment)

Republic v Ministry of Lands & Settlement & 2 others; Lortele (Exparte) (Environment & Land Miscellaneous Case 9(B) of 2023) [2025] KEELC 1279 (KLR)

Environment and Land Court of Kenya
12 March 2025
2,042 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a landowner's bid to overturn a Minister's appeal decision, finding his 1997 title was itself issued unlawfully.

What this practically means

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Executive summary

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The exparte applicant, James Kukui Lortele, moved the Environment and Land Court at Kitale by notice of motion dated 26/2/2013 seeking an order of certiorari to quash the decision of the District Commissioner - West Pokot, made on behalf of the Minister in Ministers Appeal No. 199 of 1994 on 6/2/2013, concerning parcel West Pokot/Chepkono/679, for want of jurisdiction, and an order compelling supply of the decision. The applicant contended that the dispute involved registered land over which he held a title deed issued in 1997, that the Minister's directive to subdivide the land was ultra vires, and that natural justice was breached. The 1st and 2nd respondents filed appearance but never filed a response despite repeated extensions, leaving the facts uncontroverted. The court framed two issues: the Minister's jurisdiction over registered land and whether certiorari should issue. It held that under Section 29 of the Land Adjudication Act the Minister had jurisdiction to hear an appeal lodged within 60 days, and the applicant neither showed the appeal was out of time nor objected at the hearing. However, the Minister's directives touching registration, cancellation and amendment of the title were ultra vires Section 80(1) of the Land Registration Act, that power resting with the registrar and the ELC. The court further found the Chief Land Registrar acted in dereliction of duty in issuing the title while the appeal pended, rendering the title null and void, but declined to reward the applicant, who had knowingly processed a title during a pending appeal. The application was dismissed with no orders as to costs.

Questions the Court framed

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

  1. 1.Whether the 1st respondent (the Minister in Ministers Appeal No. 199 of 1994) had jurisdiction to deal with registered land
  2. 2.Whether an order of certiorari should issue to quash the decision of 6/2/2013 and to compel supply of the decision

Key legal issues

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01

Jurisdiction of the Minister's appeal over land under adjudication

Holding

The Minister had jurisdiction under Section 29 of the Land Adjudication Act (Cap 284) to hear the appeal; the applicant did not show the appeal was filed out of time or object at the hearing, so the attack on jurisdiction failed

Reasoning

Section 29 of Cap 284 empowers the Minister to hear and determine appeals from adjudication objections lodged within 60 days. The applicant never denied the appeal existed, never alleged it was lodged out of time, and did not object to the Minister's jurisdiction at the hearing. The mere delay in determining the appeal does not oust jurisdiction.

p. 3
02

Whether the Minister's directives on the registered title were ultra vires

Holding

The directives concerning registration, cancellation and amendment of the title were ultra vires Section 80(1) of the Land Registration Act since that power belongs to the registrar and the ELC, but this did not justify quashing the whole decision

Reasoning

The court accepted that the Minister's directives offended Section 80(1) of the Land Registration Act 2012 because cancellation of title is reserved to the registrar and the ELC. However, quashing the decision would let the applicant profit from his own breach of the law in obtaining a title while the appeal pended.

p. 3
03

Burden of proof in judicial review

Holding

The onus was on the exparte applicant to demonstrate that the decision-making process was illegal, irrational or procedurally unfair, and he failed to discharge it

Reasoning

Applying Pastoli, the applicant had to establish illegality, irrationality or procedural impropriety in the decision-making process. The uncontroverted nature of the facts did not displace the burden; the applicant had been heard before the decision and had not attacked the appeal's timeliness or the Minister's seisin.

p. 3
04

Nullity of the title deed issued pending the Minister's appeal

Holding

The title deed issued on 10/12/1997 while the appeal was pending was null and void, and the Chief Land Registrar acted in dereliction of statutory duty

Reasoning

The court found the Registrar knew of the pending appeal yet issued the title without restricting the register as required by Section 28 of Cap 284, amounting to dereliction of duty. But both the Registrar's conduct and the applicant's conduct were tainted, and a court cannot sanction illegality by rewarding the applicant.

p. 4

Legal principles established

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  • The power to cancel a title deed rests with the land registrar and the Environment and Land Court, not the Minister; a decision made without authority of law is a nullity ab initio.
  • A title to land issued through a process in conflict with the law is not indefeasible; a title deed issued pending a Minister's appeal is irregular.
  • A person aware of a pending appeal cannot claim entitlement to deal with land merely because no restriction was entered on the register.

Court orders

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  1. 1.The Notice of Motion is dismissed with no orders as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Constitution of Kenya, 2010 (judicial review jurisdiction over administrative decisions; Article 35 as read with the Access to Information Act also invoked on the refusal claim)

Relief refused

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Order of certiorari to quash the decision of the District Commissioner in Ministers Appeal No. 199 of 1994 for lack of jurisdiction

The applicant failed to demonstrate illegality or procedural impropriety in the Minister's jurisdiction over the appeal; the ultra vires directives on the title could be severed, and quashing the decision would reward the applicant's own conduct in processing a title while the appeal was pending

p. 4

An order compelling supply of a copy of the decision

No evidence that the applicant sought the certified proceedings and decision under Article 35 of the Constitution and the Access to Information Act and was denied the same

p. 4

Costs

No orders as to costs

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.

The Notice of Motion is dismissed with no orders as to costs.
p. 4Final orders - dismissal
I find no merit in quashing the Minister's proceedings and the decision.
p. 4Refusal of certiorari
The upshot is that I find that to allow the notice of motion in the manner pleaded is to enable the exparte applicant to benefit from his mistakes and the breach of the law alluded to above.
p. 4Clean hands - no reward for illegality
A decision made without authority or imprimatur of law is a nullity ab initio.
p. 3Ultra vires directives
The mere fact that a Minister's appeal takes long does not take away the jurisdiction of the Minister to hear and determine the appeal. Two wrongs do not make a right.
p. 4Delay does not defeat Minister's jurisdiction
a title to land is an end product of a process and if the process is in confiict with the law, such a title is not indefeasible.
p. 4Indefeasibility of title

Issues in the judgment

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minor

Chronology appears internally inconsistent: the Minister's appeal (No. 199 of 1994) is described as heard and determined on 6/2/2013 with proceedings said to have taken place on both 16/1/2013 and 21/1/2013, while the judgment elsewhere refers to the appeal as still 'pending' when the title deed issued in 1997 and the 1st respondent is said to have failed to respond for '12 years' although the motion was filed in 2013.

minor

Typos carried in the text (e.g. 'ofiensive', 'confiict', 'afound') suggesting OCR/typographical errors in the source.

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 Ministry of Lands & Settlement & 2 others; Lortele (Exparte) (Environment & Land Miscellaneous Case 9(B) of 2023) [2025] KEELC 1279 (KLR)", Case Analysis (2025). Judicial Review (Miscellaneous Application) - notice of motion dated 26/2/2013 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1279/eng@2025-03-12

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