[2012] KEHC 5486 (KLR)

[2012] KEHC 5486 (KLR)

The court held that the District Land Registrar acted ultra vires by purporting to dispense with the applicants' consent to the transfer of lease under Section 48 of the Registered Land Act. The Registrar's power to dispense with consent is limited to situations where consent cannot be obtained due to impossibility or unreasonable expense, such as when the lessor cannot be traced or is incapacitated. It does not extend to cases where the lessor has expressly refused consent. The Registrar has no statutory authority to determine the reasonableness of the lessor's refusal or to resolve disputes between lessor and lessee regarding consent; such disputes are for the courts to adjudicate. The...

Citation
[2012] KEHC 5486 (KLR)
Parties
Applicant: Gheida Binti Omar Abed (on her own behalf and as administratix of the Estate of the late Mohamed Bin Omar Abeid); Applicant: Fatuma Ahmed (as administratix of the Estate of the late Aisha Omar Abed); Applicant: Amina Mohamed (as administratix of the estate of the late Tefle Binti Omar Abed); Applicant: Fatuma Binti Omar Abed; Applicant: Saida Binti Omar Abed; Applicant: Aziza Binti Omar Abed; Applicant: Saleh Binomar Abed; Applicant: Mariam Binti Omar Abed; Respondent: District Land Registrar; Defendant: Abdalla Said Zubedi; Defendant: Saleh Said Zubedi; Defendant: Tahir Sheikh Said Investments Ltd
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
19 July 2012
Case Number
Miscellaneous Civil Suit 182 of 2001
Procedural Posture
Judicial Review Application / Judgment
Outcome
Application allowed. Orders of certiorari and prohibition granted. Costs to the applicants.
Legal Topics
Registrar Powers, Consent to Transfer, Judicial Review, Ultra Vires Actions
Source Language
English
Land and Property Administrative Law Registrar Powers Consent to Transfer Judicial Review Ultra Vires Actions

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Parties

Gheida Binti Omar Abed (on her own behalf and as administratix of the Estate of the late Mohamed Bin Omar Abeid)

Applicant

Fatuma Ahmed (as administratix of the Estate of the late Aisha Omar Abed)

Applicant

Amina Mohamed (as administratix of the estate of the late Tefle Binti Omar Abed)

Applicant

Fatuma Binti Omar Abed

Applicant

Saida Binti Omar Abed

Applicant

Aziza Binti Omar Abed

Applicant

Saleh Binomar Abed

Applicant

Mariam Binti Omar Abed

Applicant

District Land Registrar

Respondent

Abdalla Said Zubedi

Defendant

Saleh Said Zubedi

Defendant

Tahir Sheikh Said Investments Ltd

Defendant

Procedural Posture

Judicial Review Application / Judgment

Legal Issues

  1. 1 Whether the District Land Registrar acted ultra vires by dispensing with the lessors. consent to the transfer of lease under Section 48 of the Registered Land Act.
  2. 2 Whether the Registrar has statutory power to determine if consent is unreasonably withheld and to resolve disputes between lessor and lessee regarding consent.
  3. 3 Whether judicial review is the appropriate remedy as opposed to an appeal under Section 150 of the Registered Land Act.

Ratio Decidendi

The court held that the District Land Registrar acted ultra vires by purporting to dispense with the applicants' consent to the transfer of lease under Section 48 of the Registered Land Act. The Registrar's power to dispense with consent is limited to situations where consent cannot be obtained due to impossibility or unreasonable expense, such as when the lessor cannot be traced or is incapacitated. It does not extend to cases where the lessor has expressly refused consent. The Registrar has no statutory authority to determine the reasonableness of the lessor's refusal or to resolve disputes between lessor and lessee regarding consent; such disputes are for the courts to adjudicate. The...

Court Disposition

Application allowed. Orders of certiorari and prohibition granted. Costs to the applicants.

Orders

  • An order of certiorari is issued to quash the decision of the District Land Registrar that the applicants have unreasonably withheld consent to the transfer of the lease over Mombasa Block XLV/12, 19, 20 and 21.
  • An order of prohibition is issued to prohibit the District Land Registrar from dispensing with the statutory requirement of the applicants' consent as lessors to the transfer of the lease over Mombasa Block XLV/12, 19, 20 and 21.