Shadia Mohamed Kipkorir Meli v State Law & 3 others

3. The Petitioner claims that the honorable court in Mombasa Kadhis Court Petition No. 184 of 2021 declared the suit property, matrimonial property as such, the Petitioner avers that she has proprietary interest in the property. The Petitioner led an Appeal against part of the judgment challenging the amount she was awarded as her share of the house 4. According to the Petitioner there is a conspiracy by the 3rd and 4th Respondent in collusion with the 1st and 5th Respondent to dispose of the suit property through a fraudulent scheme with an aim of rendering the Appeal proceedings in HIGH Court Mombasa Family Appeal No. 30 OF 2022 nugatory and disenfranchise the Petitioner of her proprietary rights over the suit property. 5. The Petitioner contends that the 1st Respondent in collusion with the 3rd and 4th Respondent have proceeded to unlawfully remove a caution registered in the Petitioners favor against the suit property without her knowledge and proceeded to register a charge I favor of the 3rd Respondent. Consequently, and without following due procedure, the 1st Respondent unlawfully proceeded to remove the Petitioners’ caution and opened a fresh register knowing that the original register was still in existence. 6. According to the Petitioner she has never given any consent or agreed to oer the suit property as security to any nancial institution. She registered the caution when the 4th Respondent threatened to sell the suit portion by unorthodox means. Additionally, the records at the land registry all through indicated that there were no encumbrances registered against the title of the suit property save for the caution. 7. The Petitioner claims that no notice was served prior to removal of the caution nor any hearing conducted and having declared her interests in the property she ought to have been notied of the registration of the Charge by the 1st Respondent. 8. Further the Petitioner states that the 3rd and 4th Respondent attempted to claim that the suit property had been used as security, however, it was allegedly established that the signature appearing on the document as evidence of the Petitioner’s spousal consent did not belong to her. 9. Subsequent attempts were made by the 3rd and 4th Respondents seeking to evict the Petitioner from the suit property, however injunctive orders were allegedly issued in favor of the Petitioner putting an end to the attempted unlawful evictions. 10. The Petitioner contends that the actions by the Land Registrar are ultra vires and grossly exceed the scope of powers donated by the statute. Further they are devoid of merit and aront to the principle of natural justice. 11. The petitioners allege that the respondents have violated articles 40, 47 and 50 of the Constitution. 12. The Petitioner’s claim is the Land Registrar failed to follow the due procedure set by law to ensure fairness and justice consequently violating the Petitioners rights to property and fair administrative action. 13. That the Respondents have acted in bad faith inuenced by extraneous considerations and unorthodox means and have unlawfully alienated the Petitioners property breaching her constitutional right to own property. 14. The Petitioner prays for; a. A declaration that the charge dated 17th April 2021 and Registered on 10th November 2021 in favor of the 3rd Respondent is null and void for want of spousal consent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5856/eng@2026-09-24 2

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15. b. A declaration that the Petitioners share in C.R 62863/1(Apartment No. 5, 5th Floor On Subdivision Number; 169000 Original Number 8822/3 Section 1 Mainland is not subject to alienation under the charge dated 17th April 2021. c. A declaration that the Respondents have violated and threatened the Petitioner’s Right to Property enshrined under article 40 of the Constitution and the right to fair administrative action as enshrined under article 47 of the Constitution. d. A declaration that the 1st Respondent’s actions and/or decisions resulting in the cancellation of the caution dated 28th May, 2021 and registered on the 31st May, 2021 and registration of the charge dated 17th April, 2021, registered on the 10th November, 2021 without notice and aording the Petitioner a right to be heard and without following the due process set out by the law have contravened the Petitioner’s right to fair administrative action as enshrined under Article 47 of the Constitution and violated the Petitioner’s right to property as enshrined under Article 40 of the Constitution; e. A declaration that the 1st Respondent’s actions and/or decisions resulting in the cancellation and/or removal of the caution dated 28th May, 2021 and registered on 31st May, 2021 against C.R. 62863/1 (Apartment No. 5, 5th Floor On Subdivision Number: 16900) Original Number: 8822/3 Section I Mainland North was unlawful and hereby declared null and void ab initio; f. A declaration that the 1st Respondent’s actions and/or decisions resulting in the opening of a new register and/or parcel le in respect to C.R. 62863/1 (Apartment No. 5, 5th Floor On Subdivision Number: 16900) Original Number: 8822/3 Section I Mainland North and the entries made subsequently in favor of the 3rd Respondent was unlawful and hereby declared null and void ab initio; g. An order of Certiorari to remove into the court for the purposes of its being quashed the decision by the Land Registrar, Mombasa procuring the opening a new register and/or parcel le for C.R. 62863/1 (Apartment No. 5, 5th Floor On Subdivision Number: 16900) Original Number: 8822/3 Section I Mainland North, the omission, removal and/or cancellation of the caution registered on 31st May, 2021 in favour of the Petitioner and the registration of the charge dated 17th April, 2021 in favor of the 3rd Respondent; h. An order of Mandamus compelling the Land Registrar, Mombasa to make an entry in favor of the Petitioner declaring her interest in the property on account of matrimonial property in respect to all that property known as C.R. 62863/1 (Apartment No. 5, 5th Floor On Subdivision Number: 16900) Original Number: 8822/3 Section I Mainland North; i. An order of inhibition pursuant to Section 68 of the Land Registration Act do issue hereby inhibiting registration of any dealings be it a sale, charge, lease and/or any other whatsoever in respect to parcel number C.R. 62863/1 (Apartment No. 5, 5th Floor On Subdivision Number: 16900) Original Number: 8822/3 Section I Mainland North without the express written consent of the Petitioner; j. Compensation and/or general damages for breach of the Petitioner’s right to property and the right to a fair administrative action. k. Costs for the Petition and interest thereon 1st Respondents Response In the Replying adavit Sego Manyarkiy states that a caution was registered in the Petitioner’s favor on 28th May 2021 against the suit property. However, the parcel le got lost within the registry. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5856/eng@2026-09-24 3

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16. The 1st Respondent states that the registered owner prepared a deed of indemnity indemnifying the oce of the land registrar from any demands arising from reconstruction of the suit parcel register. 17. According to the 1st Respondent, the registered owner failed to disclose the existence of the registered caution in favor of the Petitioner and went ahead and charged the parcel in favor of Strategic Urembo SACCO Society Limited for a sum of Kshs. 5, 700,00. 18. The 1st Respondent states that he never colluded with the 3rd and 4th Respondent to unlawfully remove the caution registered in the suit property. Consequently, since they were acting on instructions of the 4th Respondent, they shall be seeking to be indemnied by him. 19. The 1st Respondent contends that the issues raised in the petition are ill suited for ventilation in a constitutional petition and urges the court to dismiss the petition. 20. The 3rd Respondent led a replying adavit dated 28th October 2024. The Chief Executive ocer avers that the 4th Respondent applied for a loan facility on 9th April 2020 for a sum of Kshs. 5,700,000/= with the aim of injecting the money into family business. The loan was processed and disbursed to the 4th Respondent who oered the suit property as collateral. An adavit was sworn by the 4th Respondent and spousal consent sworn by the petitioner on 23rd April 2020. 21. The 3rd Respondent averred that along the way, the 4th Respondent was unable to settle the loan and oered to sell the suit property and utilize the proceeds to settle the loan. 22. According to the 3rd Respondent the Petitioner is unprocedurally appealing the Kadhis’ court determination of the suit property to the Honorable Court reincarnating it as a constitutional petition. Further, the registration of the charge on the suit property was done on 9th November 2021 would not be aected by the benecial interest under Muslim law. 23. The 3rd Respondents contends that having divorced, the issue of obtaining the consent is water under the bridge. Additionally, the report obtained from the DCI establishing the signature was false and that they should have been granted an opportunity to present their concerns. 24. The 3rd Respondent is of the view that the Petitioner should only claim Kshs. 700,000/= awarded by the Kadhis Court. That there is no justication legally to remove the charge since the Petitioners share had already been determined by the Kadhis court. 25. In the further adavit, the Petitioner contends that on 23rd July 2021, the 4th Respondent purported to execute a deed of Indemnity claiming that the le for C.R 62863 had been lost and sought to have the register reconstructed. However, no notice was issued and no lawful application for reconstruction was made. 26. The Petitioner states that various searches between 2021 and 2022 conrm that C.R 62863 was in existence and at the time of registration of the charge over the suit property, a duly registered caution was in place and reected at the ocial registry and further reected in MOMBASA ELC MISC APPLICATUON No. 56 of 2021. Despite the foregoing the 3rd and 4th Respondents failed to disclose the existence of the caution. 27. The Petitioner contends that upon discovering the conicting records and unlawful registration, letters were done to the land Registrar informing them of the illegality, the pending caution and ongoing proceedings, but the 1st and 2nd Respondents did not take any action. 28. According to the Petitioner, the inaction by the 1st and 2nd Respondent enabled the illegal reconstruction and fraudulent registration. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5856/eng@2026-09-24 4

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Petitioner’s submissions 29. The petitioner submits that the court has been granted power under Article 23 of the constitution to issue declarations, injunctions, conservatory orders, compensation and judicial review remedies and determine this matter. She relies on the case of John Florence Maritime Services v Cabinet Secretary, Transport [2021] eKLR. 30. The Petitioner submits that under section 73 of the Land Registration Act, a notice and hearing is required before removing a caution however, none was issued before removing the caution. She relies on the case of Kiore v Cabinet Secretary, Ministry of Lands [2015] KECA 1122 in submitting that the principles of natural justice were violated hence the removal of the caution was null and void. Further, on the reconstruction of the register, the Petitioner relies on the case of Republic Versus Countly Land Registrar Makueni Ex Parte Philes Mwikali Kioko where the court expounded on the process of reconstruction of a le under Section 33 of the Land Registration Act requiring that a 60-day gazette notice is issued before reconstruction. Therefore, the process of reconstruction was awed. 31. According to the petitioner Section 12 of the Matrimonial Property Act , Section 36(1) and 93 of the Land Registration Act prohibits alienation of matrimonial property without spousal consent. 32. The Petitioner submits that by removing the caution and registering a charge without notice, rights under Article 40, 47 and 50 were violated. The Petitioner relies on the case of Republic V National Police Service Commission v Daniel Chacha [2016] eKLR and submits that the Respondents failed to accord the Petitioner any notice or hearing hence violating her constitutional rights. 33. The Petitioner submits that the prerogative orders she seeks are proper and prays that the court grants the orders sought. 1st and 2nd Respondents Submissions 34. The 1st and 2nd Respondents submit that the oce of Registrar acted in good faith in registering the charge in the suit property. The register was not aware of any anomalies and only acted on documents forwarded to them. That the 1st Respondent merely acted on powers and function under the Land Registration Act. 35. According to the Respondents, the 1st Respondent has not infringed and violated the Petitioners of her proprietary rights over the suit property. 36. The 1st Respondent submits that the Petitioner has failed to discharge her burden of proof of proving the allegation of fraud. That fraud is a serious accusation which has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. The 1st Respondent relies on the case of Gichinja Kibutha V Caroline Nduku [2018]eKLR. 37. According to the 1st and 2nd Respondents, the 1st Respondent was performing it’s constitutional and statutory mandate and is only a custodian of land records. Submissions by 3rd and 5th Respondent 38. The 3rd and 4th respondent argue that it serves no benet in determining a question of illegality in charging the subject property after parties have divorced and the subject property distributed. That since the Petitioner and the 4th Respondent are no longer married and the rights over the subject property have been determined by the Kadhis Court which is the court of competent jurisdiction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5856/eng@2026-09-24 5

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39. According to the Respondents the orders of injunction being sought by the Petitioner on a matter that has already been settled amounts to abuse of court process. The respondent submits that the subject property was charged to obtain a loan from the 3rd Respondent which remains unpaid. It is the 3rd Respondents view that since the Kadhis court has determined the property rights, it is willing to refund the petitioner the sum of Kshs. 700,000/= declared by the Kadhis court. 40. The Respondents submit that Section 12 of the Matrimonial Property Act and 36(1) and 93 of the Land Registration Act invoked by the do not apply in this matter. Since the decision of distribution has not been overturned by the superior court it remains bunding. 41. The Respondents further contend that the provisions of Article 23, 40, 47 and 50 of the constitution are not applicable under the doctrine of avoidance. According to the Respondents determination of rights by the Kadhis court cannot give room for a Petitioner to rehearse for a fresh hearing under the guise of constitutional petition. The Respondents rely in the case of Nelson Muturi Dubeiya Harun v Law Society of Kenya and Gabriel Mutava & 2 Others v Managing Director Kenya Ports Authority & Another. 42. Lastly, the Respondents submit that since parties have already divorced and therefore, they cannot revert to their matrimonial status in order to protect the property. That the property is no longer matrimonial property and each party’s share has been determined by a court of competent jurisdiction. Therefore, the only lawful share that the Petitioner can claim is Kshs. 700, 000 and vacate the property so as to allow the 3rd Respondent to exercise its statutory power of sale. They pray that the Petition be dismissed with costs to the 3rd and 5th Respondents. Analysis and Determination 43. I have considered the Petition, Responses thereto, the submissions and authorities relied upon by the parties. The issues for determination in my view are whether the rights of the Petitioner have been infringed, if so, whether the orders sought to issue. 44. The Petitioner contends that the suit property was declared matrimonial property by the Kadhis Court and she remained in occupation. Having been dissatised with the allocation of her share in the property, she led an appeal contesting the same. The property was subsequently charged by the 3rd Respondent after the caution that had been registered in her favor was removed. She contends that the removal of the caution, the reconstruction of the register and the subsequent registration of the charge was undertaken without any notice being issued to her. She therefore alleges that her rights under article 40, 47 and 50 of the Constitution of Kenya 2010 have been infringed. 45. On the other hand, the Respondents maintain that the Land Registrar was acting in good faith and within his statutory mandate in reconstructing the register and registration of the charge. The 3rd and 4th respondents on the other hand maintain that the proprietary rights had been determined by the Kadhis court, therefore the charge was properly created. 46. Article 40 of the Constitution of Kenya 2010 guarantees that a person the right to own property by providing thus; 1. Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property— (a) of any description; and (b) in any part of Kenya. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5856/eng@2026-09-24 6

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47. On the other hand, Article 47 of the constitution guarantees every person the right to administrative action that is expeditious, ecient, lawful, reasonable and procedurally fair. This right is further given eect by the Fair Administrative Action Act. Under Section 4, an administrator, before taking any administrative action likely to adversely aect a person’s fundamental right of freedom is required to aord that party prior notice and an opportunity to be heard. Article 50 of the constitution guarantees every person the right to fair hearing. 48. The Petitioner is not a stranger to the suit property. She asserts that she had interest in the suit property and the circumstances before court demonstrate the same. Her interests in the suit property arose from matrimonial proceedings in the Kadhis court and she continued occupying the property. Since she was dissatised with the Kadhis court decision she elected to le an appeal and challenge the Kadhi’s court decision of apportionment of her share in the suit property which appeal is actively pending High Court. A caution that was registered in the Petitioners name was however removed by the 1st Respondent and charge was subsequently registered in favor of the 3rd Respondent thereby exposing the property to the charges power of sale thereby placing her occupation of the property at risk. The 1st Respondent on the other hand has argued that the Parcel register got lost and the registered proprietor executed a deed of indemnity for purposes of reconstructing a register. 49. Section 73 of the Land Registration Act regulates removal of caution providing thus; (1)A caution may be withdrawn by the cautioner or removed by order of the court or, subject to subsection (2), by order of the Registrar. 2. The Registrar, on the application of any person interested, may serve notice on the cautioner warning the cautioner that the caution will be removed at the expiration of the time stated in the notice. 3. If a cautioner has not raised any objection at the expiry of the time stated, the Registrar may remove the caution. (4) ……….. 50. The Registrar is therefore required serve upon the cautioner with a notice that the caution will be removed and whenever an objection is raised, the registrar is supposed to give parties an opportunity to be heard before a determination is made. This was the position in the case of Republic v Registrar of Titles Department of Lands & Another Ex- Parte National Museums of Kenya & 2 Others [2016] KECH 1137(KLR) where the court found that the failure to issue notice and grant the applicant an opportunity to be heard amounted to procedural impropriety. The court stated thus; I am equally satised that the Registrar of Titles acted with procedural impropriety when he/she failed to act fairly in the process of making the decision to remove the caveat in that he/she did not observe the rules of Natural justice or with procedural fairness towards the exparte applicant who was aected by the decision to remove the caveat. The Registrar failed to give notice and ensure that notice had been served upon the applicant; he failed to give the applicant an opportunity to respond to the notice; and failed to observe the procedural requirements under Section 73 of the Land Registration Act 2012 for removal of caveats. 51. A similar position was underscored in the case of Abdalla V Chief Land Registrar & Another [2015] KEELC 7703(KLR) where the court held that the administrative actions of a land registrar should be lawful and procedurally fair in line Article 47 of the Constitution and Fair Administrative Actions Act. 52. This court is of the view that the caution was not lawfully removed as there is no indication that the Petitioner was served with a notice pursuant to the provisions to Section 73 of the Land Registration Act nor was, she aorded an opportunity to object to removal of the caution. The removal of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5856/eng@2026-09-24 7

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caution disregarded the provisions of Article 47 of the constitution that guarantees procedural fairness and natural justice. 53. As regards reconstruction of the register as asserted by the 1st respondent, section 33 of the Land Registration Act empowers the Land Registrar to reconstruct a lost or destroyed Land Register. It provides thus; 1. Where a certicate of title or certicate of lease is lost or destroyed, the proprietor may apply to the Registrar for the issue of a replacement certicate of title or certicate of lease, and shall produce evidence to satisfy the Registrar of the loss or destruction of the previous certicate of title or certicate of lease. 2. The Registrar shall require a statutory declaration to be made by all the registered proprietors, and in the case of a company, the director, where property has been charged, the chargee that the certicate of title or a certicate of lease has been lost or destroyed. (3)If the Registrar is satised with the evidence proving the destruction or loss of the certicate of title or certicate of lease, and after the publication of such notice in the Gazette and in any two local newspapers of nationwide circulation, the Registrar may issue a replacement certicate of title or certicate of lease upon the expiry of sixty days from the date of publication in the Gazette or circulation of such newspapers; whichever is rst. 4. If a lost certicate of title or certicate of lease is found, it shall be delivered to the Registrar for cancellation. 5. The Registrar shall have powers to reconstruct any lost or destroyed land register after making such enquiries as may be necessary and after giving due notice of sixty days in the Gazette. (6) …………………. 54. In light of the foregoing, a registrar is required to make necessary inquiries and give the prescribed notice. Satisfaction that the parcel register is lost alone is not enough. This was the position in the case of Republic V County Land Registrar, Makueni County Land Registry ex Parte Philes Mwikali Kioki & 2 Others [2021] eKLR where the court stated; “It is common ground that it is Section 33(5) of the Act which is relevant in the application before me. My understanding of the above Section is that it deals with the powers of the Registrar to reconstruct any lost or destroyed land register. The Registrar is required to make enquires as to the loss or destruction of the land register sought to be reconstructed. And after being satised of the loss or destruction, the Registrar issues a notice of Sixty (60) days in the Gazette and in any local newspapers of nationwide circulation before reconstructing the lost or destroyed land register.” 55. This court is of the view that the respondent’s explanation that the reconstruction on the basis that the parcel le was lost cannot stand. The existence of a lost le does not relieve the Registrar the obligation to comply with statutory obligations. The Registrar failed to follow comply with the safeguards provided for reconstruction of the le, therefore the resultant administrative action is unlawful. 56. Consequently, the registration of the charge cannot be considered in isolation since it was registered after the caution was removed and the register reconstructed. Given that the removal of the caution and reconstruction of the register was undertaken contrary to the statutory procedures in place and the registration of the charge owed from the impugned administrative process, the court is of the view that the charge was founded from a process that was unlawful. 57. Furthermore, it is clear that the Petitioner was not satised with the apportionment in the Kadhi’s court with regard to her share in the property. There being an appeal demonstrate that the Petitioners https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5856/eng@2026-09-24 8

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proprietary interest has not ceased to exist. The Kadhi’s court clearly recognized her interest in the property as a spouse and determined her share which determination is subject of the appeal. 58. In the circumstance, the court nds that the petitioners right to property under Article 40 of the constitution was infringed, particularly since the proprietary interest was recognized by the Kadhis court and the appeal against the apportionment of her share is still pending. The charge therefore threatened the sale of the property thereby placing her proprietary interest at risk of deprivation. Further the court nds that the Petitioners right to fair administrative Action under Article 47 of the Constitution was implicated to the extent that the caution was removed and the register reconstructed without according her a chance to be heard. 59. The upshot of the foregoing is that this court nds that the Petitioner has suciently demonstrated to court that her rights have been infringed. Consequently, the Petitioner is entitled to the Orders sought in the petition. This court therefore Orders as follows; a. A declaration is hereby issued that the cancellation of the caution in favor of the Petitioner in C.R No. 62863/1 was unlawful and violated her right to fair hearing. b. A declaration is hereby issued that the reconstruction in respect of C.R No. 62863/1 without compliance to the due procedure was unlawful. c. A declaration is hereby issued that the Respondents decision resulting to the removal of the petitioner’s caution, reconstruction of the register and subsequent registration of the charge over C.R No. 62863/1 infringed the Petitioners right to property under Article 40 of the constitution. d. An order of certiorari is hereby issued quashing the registration of the charge dated 17th April 2021 in favor of the 3rd Respondent against C.R No. 62863/1. e. The 1st Respondent is hereby directed to make entries in the register reinstating the Petitioners caution on the suit property. f. The Petitioners prayer of an order of inhibition is granted to the extent that there shall be no dealings inconsistent with the orders of this court pending further orders. g. The Petitioner shall have costs of the suit SIGNED BY/FOR: HON. JUSTICE ANTONY O. OMBWAYO MOMBASA ENVIRONMENT AND LAND COURT ENVIRONMENT AND LAND COURT DATE: 2026-09-24 12:56:16 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5856/eng@2026-09-24 9

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