|Judicial Review 91 of 2010
|BEATRICE WAIRIMU KIIRU v DIRECTOR OF SURVEYS,COMMISSIONER FOR LANDS & DISTRICT LANDS REGISTRAR, NAIVASHA
|08 Apr 2011
|High Court at Nakuru
|BEATRICE WAIRIMU KIIRU v DIRECTOR OF SURVEYS & 2 others  eKLR
[Ruling] Judicial review-certiorari and prohibition-application for review orders of certiorari quashing the decision of the 1st respondent amending the Registry Index Map and prohibitory orders against the 2nd and 3rd respondents from effecting the decision of the 1st respondent-grounds that the applicant was not accorded a hearing before the amendment affecting her title to the suit property was effected on the Registry Index Map-whether the action of the 1st respondent to amend the Registry Index Map was in excess of jurisdiction-whether the grounds warranted the grant of orders sought-Registered Land Act sections 17, 18 & 19 (1); Constitution of Kenya, 2010 Article 40 (3)
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
JUDICIAL REVIEW CASE NO.91 OF 2010
COMMISSIONER FOR LANDS......................................................................................2ND RESPONDENT
DISTRICT LANDS REGISTRAR, NAIVASHA...............................................................3RD RESPONDENT
The application was duly served upon the Attorney General and Mr. Njuguna from that office appeared before the court and was granted time and leave to respond to the application. He was also aware of the date for the argument of the application the date having been taken in his presence. No replying affidavit was filed and no counsel appeared on behalf of the respondents when the matter came up for arguments.
It is now settled that an order of certiorari will issue if the impugned decision is found to have been made without or in excess of jurisdiction or where the rules of natural justice are not complied with. Similarly, an order of Prohibition will issue to stop a tribunal or a public body from continuing with proceedings in excess of its jurisdiction or in contravention of the laws of the land. It lies also where the tribunal or public body in arriving at its decision departs from the rules of natural justice. See Kenya National Examination Council Vs. Republic Exparte Gathenji Njoroge & Others, Civil Appeal No.266 of 1996. No doubt the Director of Surveys is empowered under the Registered Land Act to do certain things in respect of the registered land. For instance, Section 18 of the Act vests in the Director of Surveys the power to prepare and thereafter maintain the registry map for every registration district. Similarly he has the power to alter the registry map and to prepare new editions if required so to do by the Registrar and with the agreement of all parties concerned.
“19(1) Where the Registrar is maintaining the registry map he may, or in any case he may require the Director of Surveys to, correct the line or position of any boundary shown on the registry map with the agreement of every person shown by the register to be affected by the correction, but no such correction shall be effected except on the instructions of the Registrar in writing in the prescribed form, to be known as a mutation form and the mutation form shall be filed.”
For him to make those adjustments there must be instructions by the Registrar in the form of mutation forms. Secondly, the alterations envisaged must relate to correction of the line or position of any boundary shown on the registry map. Thirdly, any correction that is likely to affect any person’s interest shown by the register can be affected only with the agreement of that person.
Regarding a fair hearing, the applicant whose interest in the suit land was clearly shown in the register had a legitimate expectation that he would be heard before any steps are taken to affect those interests. The Court of Appeal in the case of The Commissioner of Lands Vs. Kunste Hotel Limited, Civil Appeal No.234 of 1995 stated the law thus:
For all the reasons stated, I find that the 1st respondent exceeded his jurisdiction, violated the law and failed to give the applicant a hearing before making the decision in question. The decision made in that manner cannot, therefore, be enforced by the 2nd and 3rd respondents. In the result, the impugned decision will be and is hereby quashed by an order of certiorari. Similarly, the 2nd and 3rd respondents are prohibited from effecting the decision of the Director of Surveys.