1.On the November 9, 2022, this court granted Margaret Njoki Mwareri leave to commence judicial review proceedings for an order of certiorari to remove to this court and quash the decision and directions of the 1st respondent in letter dated October 18, 2022 directing the applicant to surrender her title deed in parcel No Miti Mingi/Mbaruk/Block S /932 Kianjoya which was in her possession. The applicant was further granted leave to apply for prohibition prohibiting the respondent from implementing and or putting in place an any act , action or move cancelling the applicants title and redirect the register for land parcel No Miti/Mingi/Mingi/ Block S/932 (Kianjoya) in the applicant’s possession.
2.The exparte applicant subsequently filed a notice of motion seeking an order of certiorari to remove to the Environment and Land Court and quash the decision and directive/order of the 1st respondent Land Registrar-Naivasha in the letter dated October 18, 2022 directing the applicant to surrender her title deed for land parcel Miti Mingi/Mbaruk Block 5/932 (Kianjoya) in her possession. Moreover, he seeks an order of certiorari to remove to the Environment and Land Court and quash the decision and Notice of Intention to Rectify Register by the 1st respondent in respect of her title deed for land parcel Miti Mingi/Mbaruk Block 5/932 (Kianjoya) to rectify the Land Register. Further he seeks an order of prohibition against the 1st respondent from recalling for surrender title and rectifying the register on title number Miti Mingi/Mbaruk Block 5/932 (Kianjoya). He prays for costs of the application.
3.The application is based on grounds that the decision of the 1st respondent violated right to natural justice and fair hearing as she was not heard before the decision was made and therefore the decision was unfair irregular and unlawful. Moreover the decision infringes on her right to own property.
4.The facts of this case are that the applicant is the rightful and legal owner of land parcel Miti Mingi/Mbaruk Block 5/932 (Kianjoya) measuring 0.0377 hectares. Prior to purchasing the parcel of land, the applicant exercised due diligence and carried out an official search and established that one Stephenson Njau Kiarie was the registered owner and that the parcel of land was free from any encumbrances. On the October 12, 2019, the applicant entered into a sale agreement with Stephenson Njau Kiarie for the purchase of the parcel of land at Kshs 3,000,00/= and upon completion of payment of the purchase price, the applicant obtained consent to transfer the parcel of land and it was eventually transferred to the applicant. Consequently, a title deed was issued to the applicant on October 24, 2019 and she proceeded to take possession of the land, constructed a perimeter wall, installed a gate and refurbished the land parcel into an entertainment playground. The applicant continued to enjoy quiet possession of the land till March 2020 when one Patrick Wanjihia Gakio filed an application before court in Naivasha CMCC ELC No 110 of 2019. Thereafter he filed a suit in Nakuru CM ELC No 51 of 2020 alleging to be the lawful registered owner of the parcel of land measuring 0.0977 hectares having bought it from one Stehenson Njoroge Gichua in 2006 and further, that Stehenson Njau Kiarie had fraudulently caused the ownership of the parcel of land to be transferred to himself and subsequently to the applicant herein. That PaTrick Wanjihia Gakio equally lodged a complainant at Nakuru Police Station OB 103/18/10/2019 and at the same instance of Cpl Christopher Mosop charges were preferred against the applicant in Nakuru MCCR E1364 of 2022 with the offence of:a.Conspiracy to commit a felony contrary to section 393 of the Penal Codeb.Conspiracy to defraud contrary to section 317 of the Penal Codec.Forceful detainer contrary to section 91 of the Penal Coded.Obtaining registration by false pretence contrary to section 320 of the Penal Codee.Making a false statement contrary to section 339 of the Penal Codef.Forgery of official documents contrary to section 351 of the Penal Code
5.The applicant alleged that civil suit CM ELC No 51 of 2020 and the criminal case MCCrCNo E1362 of 2022 are related to the parcel of land and the issue of ownership are pending before courts of competent jurisdiction for determination and that vide a letter dated October 18, 2022, the 1st respondent made a directive/order recalling the applicant’s title deed requiring her to surrender it within fourteen (14) days based under the provisions of section 79 of the Land Registration Act, 2012 on the alleged establishment of fraud that are yet to be heard and determined in the civil and the criminal cases. The applicant laments that the 1st respondent on November 9, 2022 issued a notice of intention to rectify register to the applicant to appear before her at 10.00am on November 23, 2022 for purpose of rectifying the register in title Number Miti Mingi/Mbaruk Block 5/932 (Kianjoya)
6.The 1st respondent’s filed a replying affidavit through Roussan Ritho Mwangi, the County Land Registrar stating that on the June 20, 2022, the land register received a letter addressed to the land registrar, department of lands Naivasha Ref: DCI/Sec/Nku/2/3/1 Vol XI/67 from the Directorate of Criminal Investigations-Nakuru and signed by the County DCI Officer, Anthoni Sunguti. The said letter referred to investigations carried out in relation to the dispute involving ownership of parcel of land No Miti Mingi/Mbaruk Block 5/932 (Kianjoya) contested by two persons claiming to be registered owners of the land namely Patrick Wanjihia Gakio and Stephenson Njau Kiarie. The letter further outlined facts that the DCIO were able to establish based on the investigations carried out including the fact that the said Stephenson Njau Kiarie had been issued with a title to the land in the year 2019 and had immediately proceeded to dispose of the land to the applicant herein.
7.He states that the letter concluded with the findings from the DCIO stating that the said Stephenson Njau Kiarie had falsified documents and acquired the contested parcel of land illegally and thus fraudulently. The DCIO recommended that the Land Registrar do revoke the title issued to Stephenson Njau Kiarie and any subsequent title deed issued thereof by invoking section 79(1) (2) of the Land Registration Act and revert the parcel of land to the rightful Owner Patrick Wanjihia Gakio
8.He stated section 79(1) (2) of the Land Registration Act gives the registrar the mandate and or entitlement to rectify the register in various cases including where there fraudulent dealings with the land have been established and that pursuant to the letter detailing the fraudulent dealings with the contested land, the recommendation by the Directorate of Criminal Investigation-Nakuru and a review of the register the Land Registrar made the informed decision to issue a notice of intention to revoke the title and rectify the register invoking section 79 of the Land Registration Act and that vide a letter dated October 18, 2022 the Land Registrar proceeded to issue a notice of intention to rectify the register and directed the applicant to surrender the title deed for land parcel Miti Mingi/Mbaruk Block 5/932 (Kianjoya. Thereafter the land registry at Naivasha received summons to attend court dated November 18, 2022 from the firm of Obura Mbeche & Co Advocates. The said summons were in relation to the application filed herein against the land registrar Naivasha and others.
9.The land registrar was not aware and was neither informed that there were any court proceedings or matters pending before court in relation to the contested parcel of land. In this regard the land registrar did not act out of contempt but acted in accordance with the recommendations of the Directorate of Criminal Investigations, in accordance with the law and based on the information at hand. The land registrar is willing to abide by the decision of this court in relation to the contested parcel of land. In the supplementary affidavit the exparte applicant states that her grievance has not been responded to moreover that the respondent has not given reasons to his .actions that are unlawful.
10.I have considered the application for judicial review, the replying affidavit and submissions on record and find that the grounds for judicial review are usually three, namely illegality, irrationality and procedural impropriety. In this matter the application is principally based on illegality, irrationality and procedural impropriety. Section 79 (2) and (4) of the Land Registration Act No3 of 2012 provides for rectification of the register thus:-
11.It is trite law that allegations of fraud or acquisition of titles through other irregular means can be ascertained through the legal forums such as a court of law, wherein evidence would be adduced and tested in the usual legal manner. See the case of R.G Patel v Laiji Makanji(1957)EA 314, where the court held that:-
13.This court finds that the exparte applicant has demonstrated that the 1st respondent acted illegally where he had no powers.
14.On whether the decision of the land registrar administrative decision was tainted with unreasonableness and irrationality, the relevant provisions are found within section 7(2) (i) of Fair Administrative Action which provides that:-
17.This court finds that the 1st respondent action of relying on the recommendations of the Divisional Criminal Investigations Officer who had no such powers to recommend for the revocation of title was tainted with un-reasonabless and irrationality. He did not conduct an independent investigation to establish any fraud in respect of the transactions in the green card of the property but relied on the decision of the Divisional Criminal Investigations Officer. The reasons given by the land registrar for revoking title are not reasonable and rationale.
18.On procedural impropriety, by failing to notify the applicant of the impending rectification the 1st respondent’s action was tainted with procedural impropriety and in breach of the rules of natural. The 1st respondent a duty to hear the applicant before making an independent decision but not to rely on the decision of the 3rd respondent. The provisions of article 47(1) and (2) of the Constitution stipulate that :
24.In this case, I do find that the applicant has satisfied this court for grant of the judicial review orders sought on the basis of illegality, irrationality and procedural impropriety.
25.Ultimately, I do grant an order of certiorari to remove to the Environment and Land Court and quash the decision and directive/order of the 1st respondent in the letter dated October 18, 2022 directing the applicant to surrender her title deed for land parcel Miti Mingi/Mbaruk Block 5/932 (Kianjoya) in her possession. Moreover, I grant an order of certiorari to remove to the Environment and Land Court and quash the decision and notice of intention to rectify register by the 1st respondent in respect of her title deed for land parcel Miti Mingi/Mbaruk Block 5/932 (Kianjoya) to rectify the Land Register. Lastly, I do grant an order of prohibition against the 1st respondent from recalling for surrender title and rectifying the register on title number Miti Mingi/Mbaruk Block 5/932 (Kianjoya). Costs of the suit to the exparte applicant.