https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1274

Soroya Investments Limited v Registrar of Titles & 2 others (Civil Appeal 567 of 2019) [2026] KECA 1274 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1274 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 567 of 2019 J Mohammed & AO Muchelule, JJA July 3, 2026 Between Soroya Investments Limited Appellant and The Registrar of Titles 1st Respondent Chief Land Registrar 2nd Respondent The Hon Attorney General 3rd Respondent (Being an appeal from the judgment of the High Court of Kenya at Nairobi before (Eboso, J.) dated 21st September 2018) in Nairobi ELC No. 226 of 2015) Judgment Background 1.This is an appeal against the judgment and decree of the Environment and Land Court (ELC) at Nairobi dated and delivered on 21st September 2018 (Eboso J.) wherein the learned Judge found no merit in the Petition filed by Soroya Investments Limited (the appellant), against the Registrar of Titles, the Chief Land Registrar and The Attorney General (the 1st to 3rd respondents respectively) and accordingly dismissed the petition with no orders as to costs. 2.This being a first appeal, this Court is under a duty to re-evaluate, re- analyse, and re-assess the evidence on record and draw its own independent conclusions, while bearing in mind that it did not have the benefit of seeing and hearing witnesses. 3.The House of Lords in England and Wales in Sotiros Shipping Inc vs Sameiet Solholt (The Solholt) (1983) 1 Lloyd’s Rep 605 (CA) pronounced itself on the role of a first appellate court: -“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate Court they should be ever mindful of the advantages enjoyed of the trial judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and, equally important, what was not said.” 4.Further, this Court associates itself with the holding of V.R. Krishna Iyer J, of the High Court sitting in Kerala, India where it was stated in Kurian Chacko vs Verkey Ouseph AIR 1969 Kerala 316 that: -“A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. It is the appellate Court's function not to find out whether there is perversity in the trial Court's judgment but whether it is wrong. There is very wide difference between a wrong conclusion and a perverse conclusion.” 5.Guided by the foregoing principles, this Court sets out the factual background to help place the appeal in its proper context. The appellant instituted a Constitutional Petition dated 1st December 2014 pursuant to Articles 22, 23, 40 & 47 of the Constitution. The petition was supported by the affidavit of Mohammed Yunis Soroya, the appellant’s Managing Director. 6.The appellant averred that it was the registered proprietor of all that property having been granted title by the President of the Republic of Kenya under a Grant duly registered as I.R. No. 63954 of all that piece of land known as L.R. No. 209/12317 Nairobi (the suit property) for a term of 99 years from 1st October 1994 located within Pangani area of Nairobi. 7.It was further contended that upon being issued with the grant, the appellant paid a stand premium of Kshs.380,000/= in respect to the suit property and was subsequently issued with the title to the suit property on 29th November 1994. The appellant further contended that its intention was to develop the suit property into a commercially viable enterprise and in this regard, it obtained the necessary permits for the development. 8.The appellant averred that in or about 2010, a dispute arose between it and the defunct City Council of Nairobi relating to the Land Rates payable and consequently, it filed HCCC No. 378 of 2010 - Soroya Limited vs City Council of Nairobi in which interim reliefs were issued in its favour. During the pendency of that suit, the 1st respondent issued Gazette Notice No. 1507 of 2011 purporting to revoke the appellant’s title to the suit property. The revocation was premised on alleged illegality. 9.The appellant contended that the revocation of its title without prior notice and compensation violated its right to property contrary to Article 40 of the Constitution. The appellant further contended that failure to accord it an opportunity to be heard prior to the impugned administrative action being taken violated its rights under Article 47 of the Constitution on the right to fair administrative action. 10.The appellant further asserted that the 1st respondent’s assertion that the suit property constituted public land was not supported by any factual or legal basis established by a competent judicial body. It maintained that the suit property could not be public land in light of the City Council’s prior demand for land rates. 11.The appellant sought the following reliefs: -a.A declaration that the purported revocation of the appellant’s title to all that piece of land known as L.R. NO. 209/12317 comprised in Grant Number I.R. 63954 is unconstitutional, null and void;b.An order of certiorari do issue to quash Gazette Notice No. 1507 of 2011 which revoked the appellant’s title to all that piece of land known as L.R. No. 209/12317c.In the alternative to (a) and (b) above, an order that the appellant be compensated by the respondents for the unlawful and illegal deprivation of its property on a full indemnity basis. 12.The ELC identified the sole issue for determination to be whether the appellant was entitled to the reliefs sought. It observed that the grant had been issued under the Registration of Titles Act (now repealed) while the impugned Gazette Notice was issued under the provisions of the Constitution of Kenya 2010, the Registration of Titles Act (now repealed) and the Trust Land Act. 13.The ELC held that, unlike Section 60 of the repealed Registration of Titles Act, where the Registrar was required to move the court for an order permitting cancellation of a title, under Section 79 (2) of the Land Registration Act empowers the Registrar to rectify the register in cases of fraud. 14.The ELC further held that although Article 40 (1) of the Constitution protects property rights, Article 40 (6) of the Constitution excludes protection for unlawfully acquired property. It found that the appellant had failed to demonstrate the lawful conversion of the suit property from public to private ownership, and that the authenticity of the title remained questionable. 15.The ELC faulted the appellant for failing to challenge the impugned Gazette Notice during the subsistence of the Registration of Titles Act but only did so after the lapse of four years. 16.It further noted that Section 79(2) of the Land Registration Act permits rectification without recourse to court where fraud is established. 17.The ELC also held that the remedy of certiorari must be sought within six (6) months under the Fair Administrative Action Act and Order 53 of the Civil Procedure Rules, and that invoking constitutional proceedings instead constituted abuse of process. Consequently, the Petition was dismissed. 18.Aggrieved by that decision, the appellant filed the instant appeal raising three grounds of appeal as follows: -i.The Learned Judge erred in law and in fact by failing to make a finding that the Land Registrar lacked the mandate and authority to revoke the appellant’s title to all that piece of land known as L.R. No. 209/12317 comprised in Grant Number I.R. 63954 despite making at positive finding that indeed the Registrar was required to move the court for an order permitting cancellation of a title;ii.The Learned Judge erred in law and in fact by failing to quash the Land Registrar’s decision revoking the appellant’s title to all that piece of land known as L.R. No. 209/12317 contained in Gazette Notice No. 1507 of 2011;iii.The Learned Judge erred in law and in fact by applying technical standards of Judicial Review of administrative actions that are not applicable in the instant case which invoked the Constitutional Judicial Review jurisdiction of the court. 19.The appellant urged this Court to: allow the appeal, set aside the judgment of the ELC delivered on 21st September 2018 and substitute with an order allowing the petition dated 1st December 2014, and award costs of the appeal. Submissions by counsel 20.The appeal was canvassed by way of written submissions. Counsel for the appellant and the respondent all parties had filed their respective written submissions. Learned counsel Mr. Ongoya appeared for the appellant while Mr. Munene appeared for the respondents. Both Counsel relied on their written submissions with brief oral highlighting. 21.Mr. Ongoya framed the appeal around two principal issues. On the question whether the Registrar of Titles possessed the authority to revoke the title to the suit property without affording notice to the appellant and without recourse to the court. Counsel submitted that the suit property enjoys constitutional protection. It was contended that deprivation of such property can only occur in accordance with the Constitution, specifically Article 40(3). 22.Counsel further submitted that, under the Constitution and the applicable statutory framework, a registered proprietor’s title cannot be arbitrarily cancelled without prior notification of the reasons necessitating such revocation. It was argued that the proprietor must be accorded an opportunity to be heard, and that any unilateral decision by the Registrar to cancel or revoke a title would contravene the express provisions of Article 47 of the Constitution. 23.Counsel asserted that, at the material time, Sections 60 and 61 of the Registration of Titles Act required that where the Registrar formed the opinion that a grant had been fraudulently and/or wrongfully obtained, the Registrar was obligated to first summon the grantee to surrender the grant for correction. In the event of non-compliance, the Registrar was required to move the court to summon the grantee to show cause why the grant should not be delivered up for correction. 24.It was further submitted that Sections 60 and 61 of the Registration of Titles Act were couched in mandatory terms, and that non- compliance therewith would render the Registrar’s actions null and void. The appellant urged this Court to be guided by the decisions in Satima Enterprises Limited vs Registrar of Titles & 2 Others (2012) KEHC 2046 (KLR) and Misc. Civil Appeal No. 110 of 2006, Republic vs Knigla Land Registry and Chief Land Registrar ex parte Mutuku Ngei & Mustajabu Athumani Suleiman, wherein the courts addressed the scope of the Registrar’s powers to cancel titles and held that failure to accord an affected party a hearing prior to revocation constituted a breach of Article 47(1) of the Constitution. 25.On the issue of whether the claim was properly before the court, counsel relied on Article 22(1) of the Constitution, which permits any person to institute proceedings alleging that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened. The appellant further cited Article 23(3)(f), which provides that, in proceedings brought under Article 22, the court may grant orders of judicial review. 26.Counsel submitted that, following the promulgation of the Constitution, the trial court was vested with jurisdiction to determine claims concerning alleged violations of the right to fair administrative action, and that such claims are not time-barred. In support of this position, reliance was placed on the decisions of the Supreme Court in Praxedes Saisi & 7 Others vs Director of Public Prosecutions & 2 Others (2023) KESC 6 (KLR) and Edwin Dande & 3 Others vs Inspector General, National Police Service & 5 Others (2023) KESC 40 (KLR). 27.In conclusion, and in urging this Court to allow the appeal, counsel submitted that its claim for violation of the right to fair administrative action, brought pursuant to Articles 22 and 23 of the Constitution, invited the court to undertake a merits-based review of the impugned decision. It was further contended that the technical procedural requirements governing judicial review under Order 52 of the Civil Procedure Rules were inapplicable. 28.In response, Mr. Munene, opposed the appeal and contended that Section 79(2) of the Land Registration Act empowers the Land Registrar to rectify the land register in specified circumstances, including where a title has been unlawfully or fraudulently issued. The respondent acknowledged that Article 40 of the Constitution protects proprietary rights but submitted that such protection is qualified by Article 40(6). Counsel argued that the suit property constituted public land and was therefore not entitled to constitutional protection, as held in Isaac Gathungu Wanjohi & Another vs Attorney General & 6 Others (2012) KEHC 5200 (KLR). Counsel maintained that the Registrar acted within the law in revoking the appellant’s title, and that the ELC properly upheld that decision. 29.Counsel further submitted that, although it may be desirable for a court order to precede the cancellation of a registered title, the absence of such an order does not validate an illegal title. In this regard, reliance was placed on Republic vs Minister for Transport & 5 Others ex parte Was Ship Garbage Collector (2006) eKLR. Counsel also cited Kenya National Highway Authority vs Shalien Masood Mughal & 5 Others (2017) KECA 465 (KLR), wherein it was held that procedural deficiencies cannot cure an illegality, and that a title unlawfully issued may be revoked notwithstanding assertions that due process was followed. 30.On the final issue, the respondent submitted that the appellant had improperly framed its claim as a constitutional matter, whereas it was, in substance, an administrative dispute amenable to judicial review under Order 53 of the Civil Procedure Rules. It was contended that no fundamental rights had been infringed, as Article 40(6) excludes protection for illegally acquired property. The respondent relied on Judicial Service Commission vs Mbalu Mutava & Another (2015) KECA 741 (KLR), which distinguished between constitutional petitions and judicial review proceedings. Further reliance was placed on Okiya Omtata Okoiti vs Attorney General & 2 Others (2020) eKLR, where the court cautioned against the use of constitutional petitions to circumvent established judicial review procedures. 31.Counsel concluded by submitting that the appellant was not entitled to the reliefs sought, as the title in respect of the suit property was irregularly issued and was therefore null and void ab initio. Reliance was placed on Mureithi & 2 Others (suing for and on behalf of Mbari Ya Murathimi Clan) vs Attorney General & 5 Others (2006) KEHC 3488, where the court held that public land cannot be converted into private ownership. 32.Accordingly, the respondent urged this Court to dismiss the appeal on the basis that the appellant had failed to demonstrate that the Registrar’s revocation of title was unlawful, particularly in light of the overriding public interest in preventing illegal land allocations. Determination 33.We have duly exercised our mandate as a first appellate court by comprehensively reviewing the record of appeal, the respective submissions of the parties and the applicable law. Upon such consideration, we are of the firm view that the issues arising for determination are as follows: -a.The propriety of instituting Constitutional proceedings as opposed to Judicial Review proceedings; andb.The scope, powers and limitations of the Land Registrar in the cancellation of titles under the law. 34.It is common ground that a Grant was issued to the appellant on 27th November 1994 in respect to the suit property, for a term of ninety-nine (99) years from 1st October 1994. It is also common ground that, by a Gazette Notice No. 1507 of 2011 the then Registrar of Titles purported to revoke the said title on the grounds that the suit property had been reserved for a public purpose pursuant to the relevant provisions of the Constitution, the Government Lands Act and the Trust Land Act. 35.Aggrieved by the said decision, the appellant filed a Constitutional Petition seeking, inter alia, a declaration that the revocation was unconstitutional, null and void, and an order quashing Gazette Notice No. 1507 of 2011. 36.The ELC held the view that the appellant ought to have commenced judicial review proceedings as opposed to a constitutional petition, particularly in light of the prayer seeking to quash the Gazette Notice No. 1507 of 2011. In essence, the trial court invoked the doctrine of ‘constitutional avoidance.’ 37.The Supreme Court of Kenya in Communication Commission of Kenya & 5 Others vs Royal Media Services Ltd & 5 others (2014) KESC (KLR) articulated the principle of constitutional avoidance in the following terms:“The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.” 38.Similarly, in Speaker of the National Assembly vs James Njenga Karume (1992) KECA 42 (KLR), this Court emphasized: -“…In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.…” 39.The Supreme Court further pronounced itself in Nicholas vs Attorney General & 14 others; National Environmental Complaints Committee (NECC) & 5 others (Interested Parties) (2023) KESC 113 (KLR):“The availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief. This is because the act of seeking constitutional relief is contingent upon the adequacy of an existing alternative means of redress. If the alternative remedy is deemed inadequate in addressing the issue at hand, then the court is not restrained from providing constitutional relief. But there is also a need to emphasize the need for the court to scrutinize the purpose for which a party is seeking relief, in determining whether the granting of such constitutional reliefs is appropriate in the given circumstances. This means that a nuanced approach to the relationship between constitutional reliefs for violation of rights and alternative means of redress, while also considering the specific circumstances of each case to determine the appropriateness of seeking such constitutional reliefs, is a necessary prerequisite on the part of any superior court.” 40.Flowing from the foregoing, the doctrine of constitutional avoidance obliges courts to refrain from determining constitutional questions where adequate statutory mechanisms exist. However, courts must interrogate the pleadings holistically and ascertain the true purpose for which constitutional relief is sought. 41.Article 22 (1) of the Constitution provides that: -“Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.” 42.When considering the proceedings brought under Article 22 of the Constitution, Article 23 (3) empowers the court to grant appropriate reliefs, including: -a.a declaration of rights;b.an injunction;c.a conservatory order;d.a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;e.an order for compensation; andf.an order of judicial review. 43.The Constitution is the supreme law and the foundation of all legal authority. Where a violation of fundamental rights is alleged, a party cannot be precluded from approaching the court by way of a constitutional petition. 44.This Court, in Independent Electoral and Boundaries Commission (IEBC) vs National Super Alliance (NASA) Kenya & 6 others (2017) KECA 436 (KLR) stated as follows: -“In our considered view presently, judicial review in Kenya has Constitutional underpinning in Articles 22 and 23 as read with Article 47 of the Constitution and as operationalized through the provisions of the Fair Administrative Action Act. The common law judicial review is now embodied and ensconced into constitutional and statutory judicial review. Order 53 of the Civil Procedure Act and Rules is a procedure for applying for remedies under the common law and the Law Reform Act. These common law remedies are now part of the constitutional remedies that the High Court can grant under Article 23 (3) (c) and (f) of the Constitution. The fusion of common law judicial review remedies into the constitutional and statutory review remedies imply that Kenya has one and not two mutually exclusive systems for judicial review. A party is at liberty to choose the common law Order 53 or constitutional and statutory review procedure. It is not fatal to adopt either or both. In the instant case, we have examined the original application filed before the High Court. Whereas the application is stated to be grounded on Order 53 of the Civil Procedure Rules, on the face thereof, Articles 10, 38 (2), 47, 88 and 227 of the Constitution are cited. In our view, this correctly reflects the fusion of constitutional and common law judicial review in Kenya as one system for judicial review.” 45.A perusal of the appellant’s petition reveals allegations of violations of constitutional provisions. Judicial review would not have afforded adequate relief, particularly in relation to constitutional remedies. Consequently, we find that the ELC erred in declining jurisdiction and in failing to determine the petition on its merits. 46.In Nicholas vs Attorney General & 14 others (supra), the Supreme Court affirmed that if the alternative remedy is inadequate in addressing the issue and in this case being judicial review proceedings, then the court is not restrained from providing constitutional relief where constitutional issues are raised. 47.Article 47 of the Constitution provides: -1.Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.2.If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. 48.Article 47 has expanded the scope of judicial review to encompass not only procedural impropriety but also substantive fairness. As held in Suchan Investments Ltd vs Ministry of National Heritage & Culture & 3 others (2016) KECA 729 (KLR): -“Article 47 of the Constitution as read with the provisions of Section 5 (2) of the Fair Administrative Action Act establishes a non-exclusive approach to challenge of administrative action. The section permits bifurcation or a split approach for remedies. One approach is by way of statutory judicial review under the Act; the other is through proceedings for any other remedies as may be available under the Constitution or any written law…The bifurcated and non-exclusive nature of proceedings for remedies must be read in the context of Article 47 of the Constitution and Section 12 of the Fair Administrative Action Act. The common law principles of administrative review have now been subsumed under Article 47 Constitution and Section 7 of the Fair Administrative Action Act. In this regard, there are no two systems of law regulating administrative action - the common law and the Constitution - but only one system grounded in the Constitution. The courts power to statutorily review administrative action no longer flows directly from the common law, but inter alia from the constitutionally mandated Fair Administrative Action Act and Article 47 of the Constitution. The law on judicial review of administrative action is now to be found not exclusively in common law but in the principles of Article 47 of Constitution as read with the Fair Administrative Action Act of 2015. The Act establishes statutory judicial review with jurisdictional error in Section 2 (a) as the centre piece of statutory review. 49.Further, the Supreme Court in Kiluwa Limited & Another vs Business Liaison Company Limited & 3 others (2021) KESC 37 (KLR) pronounced itself as follows:“First and foremost, in agreement with the appellants, we note that Article 47 is a Bill of Rights provision which is stated in deliberate and clear normative terms. Thus, sub-article 1 thereof provides that: -“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair”While sub-article 2 provides that: -“If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action…These provisions set out clear and un-ambiguous entitlements within the language of the Bill of rights. They are expressed in normative terms, as opposed to general principles that would require the further input of the legislature so as to attain prescriptive force.” 50.Counsel for the 1st respondent sought to justify the cancellation of the title without affording the appellant a hearing on the basis that the acquisition was illegal ab initio, relying on Section 79 (2) of the Land Registration Act. However, the respondent failed to adduce evidence demonstrating that the suit property was lawfully designated as public land. 51.Section 79 (1) of the Land Registration Act empowers the Registrar to rectify the register in cases of errors, omissions, or inaccuracies, primarily for administrative corrections. 52.Section 79 (2) of the Land Registration Act prohibits alterations affecting title without the proprietor’s consent, except in limited circumstances, and mandates the issuance of ninety (90) days’ written notice prior to such alteration. 53.Section 79(2) of the Land Registration Act provides that: -No alteration affecting the title of the proprietor may be made pursuant to sub-section (1) without the proprietor' s consent unless—a.the proprietor has by fraud or lack of proper care caused or substantially contributed to the error, mistake or omission; orb.it would for any other reason be unjust for the alteration not to be made.Provided that a written notice of ninety days shall be given to the proprietor of such intention to make the alteration. 54.Sections 80 (1) and (2) confer upon the court the authority to order rectification of the register, subject strict conditions, particularly where fraud or mistake is established. The said provisions provide as follows: -1.Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.2.The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default. 55.In our considered view, there exists a clear distinction between rectification of minor errors and the cancellation of title, which fundamentally alters proprietary interests. This distinction was underscored in Ng’ang’a & another vs Registrar of Lands & 2 others (2023) KECA 740 (KLR) in the following terms:“The appellants have tried to convince this court that sections 79(2) & 80(1) of the LRA give the Land Registrar power to cancel titles. A proper reading of those sections is quite clear, in ordinary parlance, and according to the Collins English Dictionary rectification means to correct a mistake or to make right by removing an error, while to cancel denotes revoking, deleting, making invalid or annulling. When considered in this context, the interpretation given by the trial judge in relation to section 72(2) as regards the powers of the Land Registrar would hold, especially because section 79(1) is elaborate on what the Land Registrar may do in carrying out rectification, alluding to; errors, mistakes or omissions not materially affecting the interests of any proprietor, a dimension or area shown in the register is found to be incorrect, correcting the name, address or other 56.Similarly, in Redcliff Holdings Limited vs Registrar of Titles & 2 others (2017) KECA 291 (KLR) this Court held that the Registrar’s powers are limited to rectification of minor errors and do not extend to cancellation of title, which falls within the jurisdiction of the court. It pronounced itself as follows:“Section 79 of the Land Registration Act Cap 300 gives the Registrar powers to rectify minor errors but not cancel titles. Indeed, Section 80 of the Act fortifies this by stating that the court can order rectification of a register by directing that any registration be cancelled or amended.” 57.It is notable that the statutory requirement of ninety (90) days’ notice was not complied with. Further, there was no evidence adduced to establish that the suit property was reserved as public land. Accordingly, we find that the cancellation of the title was unlawful. The action was unconstitutional. 58.In light of the foregoing analysis, we find merit in the appeal. The judgment of the ELC delivered on 21st September 2018 is hereby set aside. The appeal is allowed with costs to the appellant. 59.We should not be seen to be countenancing a situation where the appellant had obtained title over public land without following due process. If the respondents believe that that was the case, they will be at liberty to follow due process in seeking to reclaim the suit property from the appellant. 60.The ruling has been delivered under Rule 34(4), Judge Ochieng, JA. having passed on before delivery of the judgment. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026.JAMILA MOHAMMED.....................................JUDGE OF APPEALA. O. MUCHELULE.....................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar