[2017] KEELC 528 (KLR)
The court found that while the applicant raised serious allegations of fraud regarding the registration and issuance of the land title, judicial review proceedings are not the appropriate or efficacious mode for resolving such disputes. The court emphasized that issues involving fraud and complex factual...
Source-derived case information.
- Citation
- [2017] KEELC 528 (KLR)
- Parties
- Applicant: Sema Health Care Products Limited; Respondent: Registrar of Titles; Respondent: Director of Surveys; Respondent: Francis Kiongo Muturi; Respondent: Kennedy Ng’ang’a Maranga; Respondent: Hitesh Morjaria; Respondent: Vijay Morjaria
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 18 of 2017
- Procedural Posture
- Judicial Review Application / Ruling on Leave to Commence Judicial Review Proceedings
- Outcome
- Leave to commence judicial review proceedings declined.
- Judges
- BM Eboso
- Legal Topics
- Fraudulent Land Registration, Judicial Review Leave, Title Allocation Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sema Health Care Products Limited
Applicant
Registrar of Titles
Respondent
Director of Surveys
Respondent
Francis Kiongo Muturi
Respondent
Kennedy Ng’ang’a Maranga
Respondent
Hitesh Morjaria
Respondent
Vijay Morjaria
Respondent
Procedural Posture
Judicial Review Application / Ruling on Leave to Commence Judicial Review Proceedings
Legal Issues
- 1 Whether the applicant has established an arguable case to warrant leave to commence judicial review proceedings.
- 2 Whether judicial review is the appropriate and efficacious remedy for the dispute involving allegations of fraud in land registration.
Ratio Decidendi
The court found that while the applicant raised serious allegations of fraud regarding the registration and issuance of the land title, judicial review proceedings are not the appropriate or efficacious mode for resolving such disputes. The court emphasized that issues involving fraud and complex factual determinations require a full hearing and presentation of evidence, which is best achieved through a suit commenced by plaint rather than judicial review. Consequently, the court declined to grant leave to commence judicial review proceedings and directed the applicant to pursue its remedies by way of a plaint.
Court Disposition
Leave to commence judicial review proceedings declined.
Orders
- Leave to commence judicial review proceedings is declined.
- The ex parte applicant is directed to bring suit by way of plaint seeking appropriate orders.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC JR NO. 18 OF 2017
SEMA HEALTH CARE PRODUCTS LIMITED..........................APPLICANT
VERSUS
THE REGISTRAR OF TITLES.........................................1ST RESPONDENT
DIRECTOR OF SURVEYS .............................................2ND RESPONDENT
AND
FRANCIS KIONGO MUTURI................................1ST INTERESTED PARTY
KENNEDY NG’ANG’A MARANGA.......................2ND INTERESTED PARTY
HITESH MORJARIA.............................................3RD INTERESTED PARTY
VIJAY MORJARIA................................................4TH INTERESTED PARTY
RULING
1. I have considered the chamber summons dated 12/6/2017 through which the ex parte applicant seeks leave of this court to bring a substantive motion seeking orders of certiorari, mandamus and prohibition against the respondents and the interested parties.
2. Grant or refusal of leave is an exercise of judicial discretion. The general test to be applied is whether the applicant has made out an arguable case to warrant grant of leave [see UWE MEIXNER & ANOTHER V ATTORNEY GENERAL, (2005) eKLR. Secondly, the purpose of the application for leave is to eliminate applications which are frivolous, vexatious or hopeless and ensure that only those applications disclosing arguable cases proceed for further consideration. Thirdly, when considering an application for leave, the court seized of the application is required to consider the appropriateness of judicial review proceedings vis-à-vis other modes of seeking judicial redress, taking into account the limited efficacy of judicial review, the nature of evidence necessary in the particular case, and the key parties involved in the dispute.
3. In the present application, the ex parte applicant has made allegations of fraud leading to the registration and issuance of Grant Number IR 135260 in the names of Francis Muturi and Kennedy Ng’ang’a Maranga. It is contended that the suit property was originally allocated to Sema Health Care Products Limited who procured a banker’s cheque for KShs.254,967 to cover among other payments, stand premium. It is alleged that the same cheque was used to process title in favour of the 1st and 2nd interested parties. The suit property was subsequently disposed to the 3rd and 4th interested parties.
4. It is clear from the foregoing there are serious allegations of fraud levelled against the respondents and the 1st and 2nd interested parties in the present application. In the circumstances, it is my view that judicial review proceedings would not be an appropriate and efficacious mode of bringing judicial proceedings to effectually adjudicate and settle the dispute in this matter. A suit by way of plaint would be appropriate and more efficacious. For this reason, I decline to grant leave. I direct the ex parte applicant to bring suit by way of plaint seeking appropriate orders.
Dated, signed and delivered at Nairobi on this 14th day of December, 2017.
B M EBOSO
JUDGE
In the presence of:
Koki Mbulu: for the ex parte Applicant
……………………….: for the 1st respondent
……………………….: for the 2nd respondent
……………………….: for the 1st interested party
……………………….: for the 2nd interested party
……………………….: for the 3rd interested party
……………………….: for the 4th interested party
Halima Abdi: Court Assistant