[2002] KEHC 1051 (KLR)
The court found that the applicant was the registered proprietor of Plot No.5054/1463 Kilifi, holding an indefeasible title under Section 23 of the Registration of Titles Act. The Commissioner of Lands, knowing the land was already allocated, acted ultra vires by allocating a portion of it to the interested party...
Source-derived case information.
- Citation
- [2002] KEHC 1051 (KLR)
- Parties
- Applicant: Republic; Respondent: Commissioner of Lands; Interested Party: Zakarius Mweri Baya
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 293 of 2001
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed with costs
- Legal Topics
- Judicial Review, Land Allocation, Indefeasibility of Title, Ultra Vires, Registration of Titles, Mandamus and Certiorari
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Commissioner of Lands
Respondent
Zakarius Mweri Baya
Interested Party
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the Commissioner of Lands had authority to allocate land already allocated to another person.
- 2 Whether the applicant's title to the land is indefeasible under the Registration of Titles Act.
- 3 Whether the allocation to the interested party was ultra vires the powers of the Commissioner of Lands.
Ratio Decidendi
The court found that the applicant was the registered proprietor of Plot No.5054/1463 Kilifi, holding an indefeasible title under Section 23 of the Registration of Titles Act. The Commissioner of Lands, knowing the land was already allocated, acted ultra vires by allocating a portion of it to the interested party without authority or notice to the applicant. The Commissioner had no legal power to interfere with the applicant's grant or boundaries. The court held that the allocation to the interested party was unlawful and that the applicant was entitled to judicial review remedies. Accordingly, the court granted orders of certiorari to quash the allocation and mandamus to compel...
Court Disposition
application allowed with costs
Orders
- Order of certiorari issued to quash the decision and proceedings of the Commissioner of Lands allocating a portion of Plot No.5054/1463 Kilifi to the interested party.
- Order of mandamus issued to command the Commissioner of Lands to restore the portion allocated to the interested party to the applicant.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CIVIL APPLICATION NO.293 OF 2001
IN THE MATTER OF: AN APPLICATION FOR LEAVE TO
INSTITUTE JUDICIAL REVIEW
PROCEEDINGS BY MOHAMED
SHEIKH ABUBAKER.
AND
IN THE MATTER OF: THE MOMBASA CHIEF
MAGISTRATE’S COURT CIVIL CASE
NO. 1432 OF 1998 BETWEEN
MOHAMED SHEIKH ABUBAKER –
VERSUS – ZAKARIUS MWERIA
BAYA
AND
IN THE MATTER OF: L.R.5054/1463 KILIFI
REPUBLIC ………………………………………………… APPLICANT
VERSUS
THE COMMISSIONER OF LANDS ………………… RESPONDENT
AND
ZAKARIUS MWERI BAYA ………………..…. INTERESTED PARTY
JUDGMENT
This is an application for Judicial Review by Notice of Motion. Leave has already been granted by this court as required under Order 53 Civil Procedure Rules. The application is supported by affidavit and statement as required by rules of procedure.
The orders sought are for issue of certiorari to bring to High Court and to quash the decision and proceedings of the Commissioner of Lands allocating a portion of land known as Plot No.5054/1463 Kilifi to the interested party and that mandamus issue to command the Commissioner of Lands to restore the portion allocated to interested party to the Applicant. The statement filed shows that the Applicant is the owner i.e. registered proprietor of all that piece of land known as No.5053/1463 Kilifi registered under the provisions of Registration of Titles Act Cap 281 laws of Kenya. A grant Number CR 33256 shows the applicant’s interest being a term of 99 years from 1. 11. 1996. A deed plan is also indicated – being No.217008 made and dated the 28/4/1998 which shows the dimensions, abuttal and boundaries of the Plot No.50531463. On 21/6/2001 the Commissioner of Lands issued an allotment letter to the interested party, ZACCARIUS MWERI BAYA, offered a plot in the plan No.134 KLF 6. 2001 measuring 0. 16 hectares for a term of 99 years from 1. 7.2001. It is also shown that it was within the knowledge of Commissioner of Lands that the allocation was within Plot No.5054/1463 already allocated. Nevertheless the Commissioner of Lands embarked upon and proceeded to curve out the Applicant’s land in order to issue a portion to the interested party. The respondent and interested party have been served but none appeared or filed any affidavits.
In the circumstances of the disclosed material I am convinced that the Respondent Commissioner of Lands had no authority at all to allocate land which had already been allocated to another person. He has no authority to interfere either with the terms of the grant or the boundaries as shown in the Deed Plan. The applicant has acquired indefeasible title protected by Government under Section 23 of Registration of Titles Act. His action in allocating the land to the interested party is ultra vires his powers which are strictly given under Registration of Titles Act Cap. 281. The Commissioner of Lands did not even notify the Applicant that he intended to curve out a portion of his land for the benefit of the interested party. I therefore grant the orders sought. The application is allowed with costs.
Dated at Mombasa this 20th Day of March, 2 002.
J. KHAMINWA
COMMISSIONER OF ASSIZE
Delivered in the presence of:
Mr. Khatib for Applicants. ……………………………………………. For Respondents.
……………………………………………. For interested party.
J. KHAMINWA
COMMISSIONER OF ASSIZE