[2012] KEHC 4938 (KLR)
The court held that the Land Registrar acted ultra vires and contrary to the Constitution and statutes by purporting to revoke the applicant's title through a Gazette Notice. The Constitution protects the right to property and only allows deprivation in accordance with due process and statutory authority. The...
Source-derived case information.
- Citation
- [2012] KEHC 4938 (KLR)
- Parties
- Applicant: Republic; Respondent: Land Registrar, Mombasa; Respondent: The Commissioner of Lands; Respondent: Minister of Lands
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 34 of 2011
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Application allowed. Orders of certiorari, prohibition, and mandamus granted. Each party to bear its own costs.
- Judges
- F Tuiyott
- Legal Topics
- Revocation of Title, Right to Property, Natural Justice, Ultra Vires Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Land Registrar, Mombasa
Respondent
The Commissioner of Lands
Respondent
Minister of Lands
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the Land Registrar had the legal authority to revoke the applicant's title to the property by Gazette Notice.
- 2 Whether the procedure adopted in revoking the title complied with the Constitution and statutory requirements.
- 3 Whether the applicant was denied the right to be heard, thus breaching the rules of natural justice.
Ratio Decidendi
The court held that the Land Registrar acted ultra vires and contrary to the Constitution and statutes by purporting to revoke the applicant's title through a Gazette Notice. The Constitution protects the right to property and only allows deprivation in accordance with due process and statutory authority. The Registrar lacked the legal mandate to revoke the title, and the process adopted denied the applicant the right to be heard, breaching the rules of natural justice. The court emphasized that only a court of law can declare a title null and void, and any finding of unlawful acquisition must be made through lawful procedures. Consequently, the court granted the orders of certiorari,...
Court Disposition
Application allowed. Orders of certiorari, prohibition, and mandamus granted. Each party to bear its own costs.
Orders
- An order of certiorari is issued quashing the Gazette Notice revoking the applicant's title.
- An order of prohibition is issued restraining the respondents from interfering with the applicant's title to the property.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CIVIL APPLICATION NO. 34 OF 2011
REPUBLIC …………………..…....................……………………. APPLICANT
V E R S U S
LAND REGISTRAR, MOMBASA ...............................…….. 1ST RESPONDENT
THE COMMISSIONER OF LANDS …................................... 2ND RESPONDENT
MINISTER OF LANDS …………...............….............……. 3RD RESPONDENT
JUDGMENT
By a Kenya Gazette Notice published on 26th November 2010, the Land Registrar, Mombasa made a public pronouncement that the Government had revoked title to Mombasa Island Block XXVI/973 (the property) as the land was reserved for public purpose, specifically for Municipal Council Houses. The notice is said to have been made in pursuance to the provisions of The Constitution, The Government Lands Act (Cap 280) and The Trust Land Act (Cap 288).
Briefly, on 8th August 1997 the Municipal Council of Mombasa sub-let the property to the exparte applicant for a term of ninety nine (9) years with effect from 1st January 1969. As a result the exparte applicant was registered as a leasehold proprietor of the property under The Registered Lands Act and has had possession since. The Gazette Notice revoking that title has irked the Exparte Applicant.
Although served, neither the Land Registrar, The Commissioner of Lands nor the Minister of Lands responded to the application. At the hearing, Ms Lutta representing the Attorney General did not contest the application and left its fate at the hands of the Court without advancing any arguments.
The procedure adopted by the Land Registrar in revoking title to the property has been the subject of numerous judicial decisions. What is emerging is a near consensus that the procedure violates the Constitution and is an affront to the provisions of statute. It is therefore possible that the issue raised by this application is neither unsettled or novel.
The Constitution 2010 in Article 40 promises and assures the protection of the right to property. The state cannot deprive a person of property of any description without compliance with Sub Article (3) therefore which provides as follows:
“The state shall not deprive a person of property of any description, or of any interest in or right over, property of any description, unless the deprivation-
(a)results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter 5: or
(b)is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that –
(i)requires prompt payment in full, of just compensation to the person; and
(ii)allows any person who has an interest in, or right over, that property a right of access to a court of law.”
Of course, there is Sub Article 6 to Article 40 which provides that the right to property does “not extend to any property that has been found to have been unlawfully acquired.” But a finding of unlawful acquisition can only be made by a process permitted by law. It cannot be arbitrary.
The reason given by the Land Registrar for revoking the exparte applicants title is that the allocation were illegal and unconstitutional. Article 68(c)(v) requires Parliament to enact legislation to “enable the review of all grants or dispositions of public law to establish their propriety or legality.” As I write this ruling Parliament is in the process of enacting legislation on land as required by Article 68 of the Constitution
As of now neither the Constitution nor the Statutes quoted in the Notice gives the Registrar power to revoke a title. The power to declare a title null and void lies with a Court of Law (see for example Mbsa Misc 133/2010 Republic –Vs- The Registrar of Titles Ex-parte Comen Ltd). The action of the Registrar is contrary to the Constitution and Statute and is without doubt ultra vires. Secondly even in this illegal process no opportunity was given to the exparte applicant to explain or defend the title to the property. The Registrar acted unilaterally and breached the rules of natural justice.
For the above reasons I allow the application and grant the orders of certiorari, prohibition and mandamus as sought in prayers 1, 2, 3 and 4 of the Notice of Motion of 5th April 2011. Counsel for the Exparte applicant did not insist on costs given that the Attorney General did not oppose the application. Each party shall bear its own costs.
Dated and delivered at Mombasa this 19thday of March, 2012.
F. TUIYOTT
JUDGE
Dated and delivered in open court in the presence of:-
Okongo for Applicant
No appearance for Respondent
Court clerk - Moriasi
F. TUIYOTT
JUDGE