[2010] KEHC 2873 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

Miscellaneous Application 80 of 2008

REPUBLIC..........................................................................................APPLICANT

VERSUS

THE KISUMU DISRICTLANDS OFFICER......................1ST RESPODNENT

THE KISUMU DISTRICTLANDS REGISTRAR.............2ND RESPONDENT

AND

ADHIAMBO ASIKA ALUODO& 6 OTHERS .........INTERESTED PARTIES

AND

M & L GATEWAY (K) LIMITED

PROFESSOR VICTOR OMONDIODENYO & HILDERLITH........EXPARTE

J U D G E M E N T

Upon obtaining leave to apply for an order of certiorari to bring into the High court the decision made by the District Land Registrar canceling the applicants’ titles and issuing the same to the named Interested parties, the Ex-parte applicant filed a notice of motion which is the subject of this judgment.

The notice of motion is supported by the grounds on the face of the application, statement of facts and the verifying affidavit sworn by Tobias Juma Ojwang. The motion seeks for the following orders:

(a)That this Honoruable court be pleased to grant the applicant an order of certiorari to bring into the High Court, the decision made on 22nd August, 2008, 26th March, 2008 and 21st March, 2008 canceling the applicants’ titles and registering the same in the names of Adhiambo Asika Aluodo, Dolly Achieng Otieno, Nicholas Ngesa Kodhier, Clarice Rose Auma, Odima Andrew Odongo Otieno, Seline Aoko Ooko and Tubman Damien Ochiel respectively as the registered proprietors of the land parcels of land for the purposes of being quashed and quashing the same;

(b)That the costs of this application be provided for.

The applicant named the Kisumu District Lands Officer and

Land Registrar as respondents. The current registered proprietors are joined as interested parties.

The notice of motion was objected to by the respondents and the interested parties who filed a replying affidavit dated the 15th of October 2008.

The applicants contend that they were variously registered as the proprietors of leasehold titles in respect of land parcel Nos. KISUMU/MUNICIPALITY BLOCK 13/96, 13/97, 13/99, 13/103, 13/104, 13/101 and 13/109. That the applicants bought the said plots from original allotees for consideration. The original allotees had paid all the requisite charges and obtained leasehold titles.

Their complaint is that the Commissioner of Lands through letters dated 16th October, 2007 instructed the 1st respondent to expunge the records pertaining to the said properties purportedly because the leases did not originate from the office of the Commissioner of lands, and that thereafter, on the on the 21st of April, 2008 and 22nd April, 2008 the 1st or 2nd respondent caused the interested parties to be registered as owners of KISUMU MUNICIPALITY BLOCK 13/96, 13/97, 13/99, 13/103 and 13/104. The applicants further contend that they were not given a hearing before their titles were cancelled and the land registered in the names of the interested parties which they submit goes against rules of natural justice.

The respondents on their part argue that the applicants ought to have sued the Commissioner of Lands and not the current respondents as the decision was made by the Commissioner of Lands who indeed is not a party to the suit, as the 2nd respondent acted on a decision made by the Land Registrar. Further that the titles by the applicants were irregularly obtained in the first place.

On their part the interested parties supports the respondents in their assertion that the decision to cancel and expunge was by the Commissioner of Lands as contained in the letter of 16th October, 2007 and that after cancellation the 2nd respondent could issue titles to any third parties. That the current titles remain first registration after the cancellation therefore, the said registration cannot be challenged.

I have considered the submissions and authorities cited. The facts of the case are not disputed. The applicants were the registered proprietors of the suit properties since on or about May, 2007 a letter dated 16th October, 2007 written purportedly on behalf of the Commissioner of Lands to the District Lands Officer directed that the records of the suit properties be expunged as the leases did not originate from the Commissioner of Lands.

The Land Registrar thereafter, upon the land officer acting on the said letter canceling the titles properties registered the third parties as proprietors of the suit properties.

The Registered Land Act regulates extensively dealings on land registered under the said Act, it indeed limits the powers donated to land registrars. The court has to consider the powers donated by Cap. 300 to the office of the Registrar in considering the issues. Secondly, to see if the court can indeed interfere with the said decision as urged by quashing the same.

The High Court under its judicial review jurisdiction has the power to consider and determine whether the decision of persons or bodies which perform public duties and functions were appropriately made. This position was clearly set out in the case of ASSOCIATED PROVINCIAL PICTURE HOUSES VERSUS WEDNESBURY CORPORATION (1968) 1 KB 233 whereLord Green M. R. laid down the principles as follows:-

“Decisions of persons and bodies

which perform public duties or

functions will be liable to be quashed

or otherwise dealt with by an appropriate

order in judicial review proceedings where

the court concludes that the decision is such

that no such person or body properly

directing itself and the relevant law and acting

reasonably could have reached the decision.

The Land District Officer and the land District Registrar are both public officers as stated earlier in this judgment. Chapter 300 of the Laws of Kenya regulates dealings with titles and donates power to officers.

Section 142 (1) of Chapter 300 provides as follows:-

“The Registrar may rectify the register

or any instrument presented for

registration in the following cases:

(a)in formal matters and in the case

of errors or omission not materially

affecting the interests of any proprietor;

(b)in any case and at any time with the consent

of all persons interested;

(c)where, upon re-survey, a dimension or

area shown in the register is found to be

incorrect, but in such case the Registrar

shall first give notice to all persons

appearing in the register to be

interested or affected by his intention so

to rectify.

The applicants are challenging the decision taken by the land District Officer and the Land Registrar. The letter by the Commissioner for Lands read as follows:

Re: Cancellation of Leases Block 13/92-106

Kisumu Municipality

“Please refer to my letter ref: 236531/11

dated 27th August,2007 and our telephone

discussion. Mrs. Olando/Ochieng of Monday 15th October, 2007 over the above parcels of land.

You are hereby informed that leases

in respect of the above plots which are

purported to have been registered in

your registry did not originate from this

office and were therefore fraudulently

obtained.

Under the circumstances you are

hereby directed to expunge the records

pertaining to these parcels and inform the

Commissioner of Lands accordingly.”

The respondent and the interested parties urgue that the said letter directed the Land officer to expunge the records and that thereafter the land Registrar was at liberty to allocate to any one else.

In as far as registration and rectification of land is cancelled the Chapter 300 does not recognize the powers of the Commissioner of Lands. It has bestowed the power on the registrar as defined by section 3 of the said act as follows:-

“The Registrar” means –

(a)the Chief Land Registrar or the deputy

Land Registrar, appointed under section 7

or

(b)where a Land Registrar or an assistant

Land Registrar has been authorized

under section 7(1) to exercise or perform

any particular powers or duty, that Land

Registrar or Assistant Land Registrar so far

as concerns that power or duty.”

To argue that the land officer acted upon a directive of the commissioner does not lie. Indeed section 142 does not empower a land officer to deal with land in any manner. The Act only recognises the registrar and any act done by either the land officer or the Commissioner of lands as such was unlawful and ultra vires. It follows, therefore, that any subsequent action taken by the lands registrar as a result of the cancellation by either the commissioner of lands or the district lands officer as the law does not empower either of them to do so was unlawful. Section 143 is clear that only a court of law can cancel a title.

Section 143 provides:

(1)subject to subsection (2), the court

may order rectification of the

register directing that any registration

be cancelled or amended where it is

satisfied that any registration (other

than a first registration) has been obtained,

made or obtained by fraud or mistake.

(2)The register shall not be rectified so as to

affect the title of a proprietor who is

in possession and acquire the title.

From the above it is clear that it is only the court that can cancel or amend if where the court is of the view that registration has been obtained, made or omitted through fraud or mistake and only where it is not a first registration.

In this regard I concur with the sentiments of Sergon J in Misc. Civil Appeal No.110 of 2006. Republic versus Knigla land registry and Chief land registry ex-parte Mutuku Ngei and Mustajabu Athumani Suleimanwhere he stated in part:

“……….In my humble view the land Registrar

has no power to cancel a title deed which

has been issued whether lawfully or

otherwise.”

A reading of section 142 of the Act

clearly show the powers of the land

registrar is restricted. The power to

cancel such questionable titles is expressly

given to the court under section 143 of

the Registered Land Act. In my view the

moment a Land Registrar has preformed

his duty by issuing a title deed like in

this case he becomes Functus Officio and

hence he cannot undo the same by cancelling.”

In this case, therefore, the 1st respondent had no power or duty to cancel the titles his action was unlawful and ultra vires and as such the Land Registrar had no title to issue to the interested parties and, therefore, it follows that the action of the land registrar to issue titles to the interested parties are null and void abinito. The application is therefore, allowed. The decision made to cancel the applicants titles on the 22nd of April, 2008, 26th March, 2008 and 21st April, 2008 and to issue titles to the interested parties is hereby quashed.

Costs to the applicants.

Dated and Delivered this 16th day of April 2010

ALI-ARONI

J U D G E

In the presence of:

Mr. Odunga for the Applicant

N/A for the Respondents

Mr. Odhiambo holding brief for Mr. Onsongo for interested parties

AA/mk.