Republic v Bishop Patrick Ligawa Nyagudi, Edwin Ogola, Benson Ogot, Church of Christ In Africa, Land Registrar, Mombasa:Ex -parte Archbishop Naphtaly Yongo Okuon, Gideon Omondi Ogwambo, Julius Ouma Sako & Eli Owino Akuro (All Suing on behalf of Members of the Evangelical Christ Church of Africa) [2021] KEELC 4456 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT MOMBASA

MISCELLANEOUS APPLICATION NO. 46 OF 2019 (JR)

REPUBLIC.............................................................................................................................APPLICANT

VERSUS

BISHOP PATRICK LIGAWA NYAGUDI...............................................................1ST RESPONDENT

EDWIN OGOLA.......................................................................................................2ND RESPONDENT

BENSON OGOT.........................................................................................................3RD RESPONDENT

CHURCH OF CHRIST IN AFRICA.......................................................................4TH RESPONDENT

THE LAND REGISTRAR, MOMBASA.................................................................5TH RESPONDENT

EX PARTE: ARCHBISHOP NAPHTALY YONGO OKUON

GIDEON OMONDI OGWAMBO

JULIUS OUMA SAKO

ELI OWINO AKURO (All Suing on Behalf of Members of the Evangelical Christ Church of Africa)

JUDGMENT

(Suit by ex parte applicants seeking an order of certiorari to quash a letter written by the Land Registrar which letter threatened to cancel the title of the ex parte applicants and issue title to the 1st – 4th respondents and prohibition to stop the Land Registrar from acting on the said letter or nullifying the title of the ex parte applicants; ex parte applicants being registered proprietors; 1st – 4th respondents alleging that the title of the ex parte applicants is fraudulent and that they are the legitimate owners of the disputed land; whether the Land Registrar has power to cancel title; held that the Land Registrar has no such powers; Land Registrar thus acted beyond his powers by seeking to nullify the title of the ex parte applicants; order of certiorari and prohibition issued)

1. Through an application dated 7 November 2019, the ex parte applicants applied for, and got, leave to commence judicial review for the following two orders :-

a. Certiorari to quash the decision of the Land Registrar, Mombasa, to revoke and/or cancel the ex parte applicant’s title Mombasa/Ziwa La Ng’ombe Scheme/475 as evidenced in the letter dated 2 September 2019 issued to the Evangelical Christ Church of Africa.

b. Prohibition prohibiting the Land Registrar, Mombasa, from cancelling, revoking or recalling the title Mombasa/Ziwa La Ng’ombe Scheme/475 issued to the Evangelical Christ Church of Africa.

2. The substantive motion was subsequently filed on 13 November 2019. The verifying affidavit is sworn by Archbishop Naphtaly Yongo Okuon, the Presiding Bishop and Head of the Evangelical Christ Church of Africa (ECCA), which became registered on 21 August 2006, under the Societies Act. He has deposed that prior to the registration of the ECCA, their members were part of the Church of Christ in Africa (CCA). Sometimes in the year 2005, the CCA split into two and the splinter group became the ECCA. He has averred that prior to the split, the members at the Kongowea Church had raised funds and applied to be allocated the Plot Mombasa/Ziwa La Ng’ombe Scheme/475. He has annexed a letter dated 15 February 2002 advising of the allotment and other letters related to the allotment of the land. He has stated that after the split in the year 2005, all members at the Kongowea Church converted to ECCA, and applied to be issued with the title deed to the suit land. It is his position that it is the members of ECCA who raised funds for the purchase of the Plot and for construction of the church where they worship. He has annexed a title deed issued to ECCA on 8 August 2013. He has asserted that this plot was acquired and developed by his (ECCA) members and as such the CCA has no claim over the land. He has averred that there is a scheme hatched by CCA to deprive the ECCA of this land. He has referred to the letter dated 2 September 2019 written by the Land Registrar, Mombasa, threatening to revoke the title issued to ECCA which he believes is an illegal and unlawful attempt to deprive ECCA of its lawfully acquired property at the behest of CCA.

3. The 1st to 4th respondents, comprising of CCA, entered appearance and filed a preliminary objection and a replying affidavit sworn by Archbishop Patrick Ligawa Nyagudi, the Archbishop and Head of CCA. He has mentioned that CCA was registered under the Societies Act on 6 January 1958 and also incorporated under the Trustee (Perpetual Succession) Act on 13 August 1999. He has deposed that CCA applied for and was allocated the suit land on 15 February 2002. He has annexed copies of the letter of offer and payment receipts for the plot. He has averred that CCA raised funds to build a church and other developments. Sometimes in the year 2005, some members of the church decided to break away and start their own church which is ECCA. He has deposed that after the split, ECCA members in various parts of the country began interfering with the property of CCA, sometimes violently. As a result, CCA filed the suit Kisumu HCCC No. 121 of 2005, against ECCA, seeking orders inter alia, that ECCA have no right to use CCA facilities or property, and a permanent injunction to restrain ECCA from interfering with the property of CCA. He has annexed a copy of the plaint. He has deposed that in that suit, CCA demonstrated the legality of its properties including the suit property. He has deposed that on 14 May 2007, the court issued a temporary injunction restraining ECCA from interfering with the operations of CCA or using its church buildings pending hearing of the suit. He has averred that ECCA got registered on 21 August 2006 several years after the allotment letter for the suit property had been issued to CCA. He has deposed that in the year 2012, while the case in Kisumu High Court was still pending, it came to the attention of CCA that the ex parte applicants had obtained title to the suit land. They then wrote to the Provincial Land Adjudication and Settlement Officer, Mombasa, through a letter dated 10 October 2012, seeking to know how the changes were done. Another letter was also written to the Registrar of Titles, Mombasa on 7 November 2012. It came to his knowledge that on 29 January 2014, ECCA obtained a Letter of Offer for the suit property, but under a new title, namely Plot No. 475. He has pointed out that the title deed was issued on 8 August 2013 before the Letter of Offer. He believes the title to ECCA was issued irregularly because the land was not available for allotment; that title was issued before the Letter of Offer; and further that the title deed was issued despite the existence of orders issued in the Kisumu Court. He has gone further to state that judgment in Kisumu HCCC No. 121 of 2005 was delivered on 30 September 2016, and it was decreed inter alia, that ECCA has no right to use CCA facilities, or property, and a permanent injunction against them issued.

4. He has deposed that as a result of the irregular allotment and title, CCA wrote to the Director, Land Adjudication and Settlement Officer on 10 September 2018, requesting for cancellation of the allotment letter dated 29 January 2014 and revocation of the Title Deed. He also received a letter dated 12 October 2018 from the Director Land Adjudication and Settlement, addressed to the Chief Land Registrar, requesting the Registrar to assist them get title in their favour.

5. He commented on the letter dated 2 September 2019 written by the District Land Registrar, Mombasa, to the ex parte applicants, asking them to surrender the title deed for revocation/cancellation. He has asserted that the Land Registrar, has powers to rectify the register where the document in question has been obtained by fraud. It is his view that the title deed was obtained by way of fraud and misrepresentation. He has further averred that the ex parte applicants did not disclose to court the existence of the decree against them. He has stated that the church in issue, the suit property and the buildings therein, belong to CCA and not the splinter group.

6. The following was raised in the preliminary objection :-

1. That the application dated 12 November 2019 offends the provisions of Order 53 Rule 1 (2) and Rule 4(1) of the Civil Procedure Rules, 2010.

2. That the application dated 12 November 2019 has been filed contrary to Section 7 of the Civil Procedure Act, 2010 the same having been determined in Kisumu HCCC No. 121 of 2005.

7. All counsel filed written submissions which I have taken note of.

8. In his submissions, Mr. Mutubia, learned counsel for the ex parte applicants, inter alia submitted that the suit property is registered in the name of ECCA, and being legal owners, the property can only be alienated as provided for by law. He submitted that the dispute over ownership and/or control of the suit plot cannot be determined by the 5th respondent through the letter dated 2 September 2019 or otherwise. He submitted that the action of the 5th respondent was illegal and ultra vires the powers conferred upon the Land Registrar by the Land Registration Act, 2012 and specifically referred to Section 79 of the said statute. He submitted that it is only the court that has power to direct the cancellation of a registration pursuant to Section 80. He submitted that the letter of 2 September 2019 purports to recall the title of the ex parte applicants for revocation on the grounds of “irregularity” without giving details of the alleged irregularity contrary to Section 79 (2). He submitted that Section 79 (2) presupposes that the 5th respondent will carry out an investigation or inquiry by giving the title holder an opportunity to be heard before such drastic action or revoking a title is undertaken. He submitted that the suit Kisumu HCCC No. 121 of 2005 did not specifically address the issue of the suit property and at no time did the court issue any order for the revocation of the title of the ex parte applicants. He relied on the cases of Republic vs Chief Land Registrar & Another Ex Parte Yosabi Kerubo Manyura (2018)eKLR; Republic vs District Land Registrar Thika Lands Registry & 3 Others Ex Parte Michael Kamande Gachukia (2019)eKLR; Frann Investments Limited vs Registrar of Titles Mombasa (Mombasa HCCC Petition 63 of 2012) and Republic vs Registrar of Titles Mombasa & 4 Others Ex Parte A.K Abdulgani Limited (2018)eKLR.

9. The 5th respondent did not file any pleadings but counsel filed submissions in support of the preliminary objection through Mr. Mwandeje, learned State Counsel. It was submitted that no service of the main motion was effected within 21 days from the date of extraction of the order, indicated as 12 November 2019, thus offending the provisions of Order 53 Rule 4 (1) of the civil Procedure Rules. He relied on various authorities to support the position that failure to serve pleadings goes to the root of the application.

10. In response, counsel for the ex parte applicants submitted that the issue of service is a question of fact which can only be ascertained by evidence. He submitted that the issue of service is noted in the affidavit of service filed by the process server and he submitted that the same indicates that the 5th respondent was duly served. He submitted that the 5th respondent ought to have raised the issue of non-service at the earliest opportune time but waited until the submissions stage. He pointed out that the 5th respondent has not filed anything to oppose the motion herein.

11. In her submissions, Mrs. Umara, learned counsel for the 1st – 4th respondents, on the preliminary objection, submitted inter alia that the motion is defective as a judicial review motion is supposed to be accompanied by a Statement and that the facts should be in the verifying affidavit and not the Statement. She relied on the case of R vs Commissioner General, KRA ex parte Silvano Onema Owaki T/A Marenga Filling Station (2001) eKLR. She further submitted that the suit offends the res judicata rule given the suit Kisumu HCCC No. 121 of 2005, between the same parties, which was decided on 30 September 2016. On the substance of the motion, she submitted that the impugned letter of 2 September 2019 was a notice and not a decision of the Land Registrar and thus the order of certiorari cannot issue. She relied on the case of R vs Kenya National Examination Council Ex Parte Geoffrey Gathenji Njoroge & 9 Others (1997) eKLR and R vs Attorney General & Another (2015) eKLR. She did not think that the Land Registrar acted in excess of jurisdiction and submitted that the Land Registrar was within his powers to issue the notice to the ex parte applicants. She submitted that the ex parte applicants were given a 90 days notice to surrender their title meaning that they were given time to state to the Land Registrar why they could not surrender their title. She submitted that there is no indication that the Land Registrar made a decision in respect of the cancellation of the title. She submitted that to issue an order of Prohibition would be impeding the Land Registrar from exercising his discretion. She was of the view that the issues herein were resolved in Kisumu HCCC No. 121 of 2005. She submitted that an alternative remedy exists in Section 86 (1) of the Land Registration Act, which provides avenue for a person aggrieved by a decision of the Land Registrar, to state a case for the opinion of the court. She submitted that the ex parte applicants ought to have filed a case for the opinion of the court. She submitted that the ex parte applicants have not come to court with candour and full disclosure of material facts. She submitted that a status quo order was issued in Kisumu HCCC No. 121 of 2005 and the ex parte applicants disregarded this order and fraudulently applied for registration of the suit land. She submitted that the application is defective, and should be struck out, as the 1st – 4th respondents should have been sued as interested parties.

12. I have considered the submissions of counsel and the authorities they provided even those that I have not quoted above. I will start by addressing the preliminary issues raised.

13. Counsel for the 1st – 4th respondent and counsel for the 5th respondent have contended that this suit is defective and should thus be struck out. Mrs. Umara has raised issue about the facts being in the Statement and not Verifying Affidavit, and the naming of the 1st – 4th respondents as respondents in the suit, rather than as interested parties. Mr. Mwandeje, for the 5th respondent, in his submissions, raised issue that the ex parte applicant failed to serve the 5th respondent with the Notice of Motion accompanied by the Statements and Affidavits relied upon at the leave stage, thus offending Order 53 Rule 4 (1). Starting with the latter point, I agree with Mr. Mutubia, that the issue of service, or lack thereof, cannot be brought for the first time at the stage of submissions without there being evidence tendered. I have gone through the record and nowhere have I seen any issue raised by counsel for the 5th respondent touching on service of these pleadings. If no service had been effected, counsel needed to point this out to court, or file an affidavit stating as much. I cannot therefore entertain this point at this stage.

14. On the naming of the 1st – 4th respondents as substantive respondents, I do agree with Mrs. Umara, that the remedy sought is to quash a letter written by the 5th respondent and to prohibit the 5th respondent from taking certain action. There is no order that is sought against the 1st – 4th respondents and thus they should not have been substantive respondents. They could have served well as interested parties. Having said that, in my opinion, this, at best, is a procedural technicality that has not caused any loss or prejudice to the 1st – 4th respondents. It is thus curable following the provisions of Article 159 (2) (d) of the Constitution which basically directs the court not to be over-reliant on procedural technicalities at the expense of substantive justice. In my view, it would be giving procedure too much prominence if I am to strike out this suit, for reason only, that the 1st – 4th respondents were named as respondents, rather than as interested parties.

15. The other preliminary point is on the Statement of Facts and the Verifying Affdiavit. A suit seeking judicial review orders is commenced by an application which is heard ex parte vide which the ex parte applicant seeks leave to commence the substantive suit. There are certain documents which are supposed to accompany such an application for leave and these are provided for in Order 53 Rule 1 (2) which is drawn as follows :-

(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.

16. Mrs. Umara submitted that the facts should be in the affidavit and not the Statement. In the case of Commmissioner General, Kenya Revenue Authority through Republic vs Silvano Onema Owaki T/A Marenga Filling Station, the Court of Appeal was of opinion that it is the verifying affidavit which is of evidential value and not the statement to be verified. That may be well and good. This is a 2001 decision pronounced prior to the 2010 Constitution. Again, I ask myself whether any prejudice has been suffered by the facts being in the Statement, and there being a verifying affidavit, and I can find none. It is a matter, in my view, again curable by Article 159 (2) (d) of the Constitution and I will leave it at that. In any event, I have seen that the Verifying Affidavit herein does contain the facts in dispute, in as much as the Statement also does so, and I do not see why the 1st – 4th respondents have deemed it fit to raise that issue.

17. The final preliminary issue is whether this suit is res judicata. I am not persuaded. What is in issue in this case is the jurisdiction of the Land Registrar to cancel titles or seek a return of titles for cancellation. This was not the subject matter of the suit in Kisumu HCCC No. 121 of 2005, which was a dispute over the split of the two churches engaged in this litigation. I need not say more on that.

18. On the substance of the matter, this is a judicial review motion seeking orders of certiorari to quash the Land Registrar’s letter of 2 September 2019. I will reproduce that letter for full import. It is from the District Land Registrar Mombasa and is addressed to the ECCA. It states as follows :-

RE : MOMBASA/ZIWA LA NGOMBE/475

We have received a complaint from Church of Christ in Africa that the above-mentioned parcel of land was irregularly allocated to yourselves whereas the bonafide original proprietor was Church of Christ in Africa.

You are therefore required to surrender the Title Deed issued to Evangelical Christ Church in Africa to the undersigned for revocation/cancellation within 90 days from the date hereof.

Take notice that if you fail/refuse to comply with this order we shall invoke section 79(2) of the Land Registration Act No. 3 of 2012 and proceed to rectify the register by expunging the title issued to evangelical Christ Church in Africa from our records and proceed to register Church of Christ in Africa as the bonafide proprietors of Mombasa Ziwa La Ngombe/475.

19. It was argued by Mrs. Umara that this letter is not a “decision” but was merely a “notice,” and that what the ex parte applicants needed to do was to write back to the Land Registrar and give reasons why their title should not be cancelled. I do not agree with these submissions. I have read, and I have re-read this letter. Nowhere does it say that it is a notice asking the ex parte applicants to give reasons, within a specified number of days, why their title should not be cancelled. This letter is categorical that the ex parte applicants are supposed to surrender their title to the suit land to the Land Registrar for purposes of revocation/cancellation within 90 days, and in default, the Land Registrar will proceed to expunge the title from the register. It is clear to me that the Land Registrar, following the complaint of the 1st – 4th respondents, made a decision that the title of the ex parte applicants is fraudulent. He was thus calling, nay, demanding, that the ex parte applicants return the title for cancellation because it is fraudulent. It cannot therefore be argued that this was a notice and not a decision. The letter of 2 September 2019 is thus containing of a decision to nullify the title of the ex parte applicants and can thus be the subject of an order for certiorari. That letter also contains a futuristic act, that of invoking Section 79 (2) of the Land Registration Act, and rectifying the register by expunging the title issued to the ex parte applicant. This act, being a future intended action, can thus be the subject of an order of prohibition.

20. Neither am I persuaded that what the ex parte applicants needed to do, after receipt of this letter, was to invoke the provisions of Section 86 of the Land Registration Act. That section provides as follows :-

Review of the decision of the Registrar

(1) If any question arises with regard to the exercise of any power or the performance of any duty conferred or imposed on the Registrar by this Act, the Registrar or any aggrieved person shall state a case for the opinion of the Court, and thereupon the Court shall give its opinion, which shall be binding upon the parties.

(2) The Rules Committee shall make rules on the procedures to be followed by the Registrar or an aggrieved person under subsection (1).

21. The above provision, does indeed give leeway to a person who has several questions regarding the exercise, by the Registrar, of his powers, to present the issue for a case stated. One may argue that it thus gives a person avenue to have the decision of the Land Registrar looked at by the court. That is fine, but I have not seen, within this Section, anywhere that a person is barred from bringing a suit against the Land Registrar, if that person is aggrieved by a decision of the Land Registrar. I think that it is upon a party to assess whether the decision of the Land Registrar, is one that is appropriate for the case stated path, or whether straight adversarial litigation is best suited, depending on the type of case. Case stated, may be a good avenue where the issue is not adversarial, but parties wish to have the court pronounce itself on a question, which the parties and the Land Registrar, may be at variance, and once the court settles the question, the parties can then continue with the intended action or review it, as the case may be. To me, the issue here is adversarial in nature, and I cannot fault the ex parte applicants for opting to come to court for redress.

22. In my view, the ex parte applicant has thus properly invoked the jurisdiction of this court and I will proceed to the merits of the case.

23. We need to recall that judicial review looks at the decision making process and not the substance of the decision. This would encompass issues such as procedural fairness, the exercise of the right to be heard, and whether the person making the decision or intending to make the decision, has the requisite jurisdiction to do so. On the question of procedural fairness and natural justice, the 5th respondent did not give the ex parte applicant an opportunity to be heard before making a decision that the title held by the ex parte applicants was irregular. Nowhere have I seen where the 5th respondent is inviting the ex parte applicants to comment about the legality of their title. The right to be heard is a cardinal pillar of the doctrine of natural justice. It is also key in assessing whether a party has been accorded fair administrative action. The 5th respondent, on the sole word of the 1st – 4th respondent, without hearing from the other side, made a decision that the title of the ex parte applicants is fraudulent. This was not fair to the ex parte applicants who needed to be heard before the Land Registrar could pronounce their title as being irregular. The 5th respondent did not accord the ex parte applicants the opportunity to be heard, and solely on the ground of breach of natural justice, this motion ought to succeed.

24. There is however a critically important question which I need to address, that of whether the Land Registrar had jurisdiction in the first place, to cancel the title of the ex parte applicants and expunge it from the register. The Land Registrar, in his letter, did assert that he was exercising his powers under Section 79 (2) of the Land Registration Act. A deeper interrogation of this provision of the law is thus needed and it can only be done by looking at the whole of Section 79 which is drawn as follows :-

Rectification by Registrar

The Registrar may rectify the register or any instrument presented for registration in the following cases—

(1) (a) in formal matters and in the case of errors, mistakes or omissions not materially affecting the interests of any proprietor;

(b) in any case and at any time with the consent of all affected parties; or

(c) if upon resurvey, a dimension or area shown in the register is found to be incorrect, in such case the Registrar shall first give notice in writing to all persons with an interest in the rectification of the parcel;

(d) for purposes of updating the register;

(e) for purposes of correcting the name, address or other particulars of the proprietor upon the written application by the proprietor in a prescribed form.

No alteration affecting the title of the proprietor may be made pursuant to sub-section (1) without the proprietor' s consent unless—

(2) (a) the proprietor has by fraud or lack of proper care caused or substantially contributed to the error, mistake or omission; or

(b) 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.

(3) Upon proof of the change of the name or address of any proprietor, the Registrar shall, on the written application of the proprietor, make an entry in the register to record the change.

(3A) A person aggrieved by the decision of the Registrar under this section may apply to the Court for any necessary orders.

(4) (a) the process of investigation including notification of affected parties;

(b) hearing of the matters raised; and

25. Although in his letter of 2 September 2019, the Land Registrar, purported to invoke the provisions of Section 79 (2) of the Land Registration Act, his powers are actually contained in Section 79 (1) and not Section 79 (2). Section 79 (2) only gives the circumstances that would allow the Land Registrar, to proceed to exercise his Section 79 (1) powers, without the consent of the proprietor of the land in issue. In other words, the Land Registrar, in exercising his Section 79 (1) powers, needs the consent of the proprietor of the land except for the circumstances pronounced in Section 79 (2).

26. Let us then have a closer look at the powers granted vide Section 79 (1). It will be seen that Section 79 (1) gives the Land Registrar power to rectify the register or instrument presented for registration, but it is for fairly limited and procedural matters, that do not go to address or settle any controversy over the proprietorship of the land. Section 79 (1) (a) is in fact categorical that the Land Registrar can correct errors, mistakes, or omissions, not materially affecting the interests of any proprietor. Section 79 (1) (a) would certainly cover some small slips and obvious errors, say, the value of consideration where a figure can be seen to be obviously missing (for example the missing zero in KShs. 1,000,00/= instead of KShs. 1,000,000/= yet the amount in words is Kenya Shillings One Million). The correction of errors, mistakes or omissions can also be made with consent of the parties under Section 79 (1) (b), and these would still have to be minor and not going to title, nor have a bearing on proprietorship. Section 79 (1) (c) covers corrections on acreage where there has been a resurvey where it is apparent that the dimensions shown in the register are incorrect, and even to exercise this power, notice has to be given to the parties affected so that they can comment on this rectification. Section 79 (1) (d) covers rectification for purposes of updating the register, and there is not really much here, because it is simply a clerical entry for keeping the register up to date. Section 79 (1) (e) covers rectifications of names, addresses and other particulars of the proprietor on the written application of the proprietor. It could be that the proprietor has changed the name due to marriage or through a deed poll and he/she wants the register to reflect this change of name. Again, no issue on proprietorship arises. Subsection (2) of Section 79 makes provision for the exercise of the Land Registrar’s powers pursuant to sub-section (1) without the consent of the proprietor, and this would cover issues related to fraud, lack of proper care, due to error or mistake of the proprietor, and even then, a 90 days notice has to be given.

27. I have seen no power in Section 79 or indeed in the Land Registration Act, that gives power to the Land Registrar to cancel a person’s title when that person is noted in the register to be the proprietor of the land. In such an instance, removing the person’s name from the register, would in fact be a determination of the veracity of that person’s title, which is a power that the Land Registrar does not have. That power is vested in the Courts pursuant to Section 80 of the Act and under the general jurisdiction of the courts given by the constitution to exercise judicial authority.

28. My holding above is not new. It has indeed been held in various decisions that the Land Registrar does not have power to make determinations on disputed ownership of title. Mr. Mutubia, learned counsel for the ex parte applicants, provided a couple of these decisions. One such case is that of R vs Chief Land Registrar & Another ex parte Yosabi Kerubo Manyura (2018)eKLR. In that matter, the Land Registrar cancelled the title of the ex parte applicant and reverted it to the original owner. The court (Mutungi J) had this to say :-

“(13)….The Land Registrar in cancelling the applicant’s title as he did, acted outside the scope of his mandate and he had no jurisdiction to do so. Section 79 of the Land Registration Act, No. 3 of 2012 makes provisions for instances where the Land Registrar can effect rectification of the register. The rectification that a Land Registrar can make does not include cancelling the title of a registered proprietor…

(15) I therefore hold that the land registrar lacked the jurisdiction to cancel the applicant’s title and in doing so acted ultra vires and his actions are amenable to an order of certiorari.”

29. I am in full agreement with the above dictum. The Land Registrar had no jurisdiction to demand that the ex parte applicants present their title to him for cancellation for he had no power to cancel their title. Neither could he threaten to cancel their title and rectify the register in the event that the ex parte applicants refused to present their title for cancellation. To me this is a fit case for the grant of the orders of certiorari and prohibition as prayed for, as the Land Registrar was clearly acting beyond his powers.

30. I am aware that the 1st – 4th respondents went to great lengths to try and demonstrate that the title of the ex parte applicants is not a good title. This is not the appropriate forum to go into the merits or otherwise of the title of the ex parte applicant. If the 1st – 4th respondents feel that the title of the ex parte applicants is not good, they can exercise their right by filing an appropriate action in court for the cancellation of that title. I am thus unable, within these proceedings, to go into the details of the veracity of the title of the ex parte applicants. I have said enough to demonstrate that this suit must succeed and it does succeed. I now make the following final orders :-

i. That an order of Certiorari is hereby issued bringing to this court and quashing the letter of the District Land Registrar dated 2 September 2019 in respect of the land parcel Mombasa/Ziwa La Ngombe/475.

ii. That an order of prohibition is hereby issued prohibiting the Land Registrar, Mombasa, from acting as intended in the impugned letter of 2 September 2019, or cancelling, revoking or recalling the title Mombasa/Ziwa La Ng’ombe Scheme/475 issued to the Evangelical Christ Church of Africa, without an order of court to do so.

iii. That costs of this suit to be shouldered by the 5th respondent.

31. Orders accordingly.

DATED AND DELIVERED THIS 28 DAY OF JANUARY 2021

JUSTICE MUNYAO SILA

JUDGE, ENVIRONMENT AND LAND COURT

AT MOMBASA