Republic v Land Registrar Kilifi & another Ex-parte Daniel Ricci [2013] eKLR
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
JUDICIAL REVIEW APPLICATION NO. 6 OF 2012
IN THE MATTER OF: ORDER 53 RULES 1 AND 2 OF THE CIVIL
PROCEDURE RULES ACT (CAP 21 LAWS OF KENYA)
AND
IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW FOR
ORDERS OF PROHIBITION AND CERTIORARI
BY DANIEL RICCI
AND
IN THE MATTER OF: ARTICLE 23 AND 40 ON THE CONSTITUTION
OF KENYA
AND
IN THE MATTER OF: CHEMBE/KIBABAMSHE/427
BETWEEN
REPUBLIC ...................................................................................APPLICANT
=VERSUS=
1. LAND REGISTRAR KILIFI
2. THE ATTORNEY GENERAL...........................................RESPONDENTS
AND
DANIEL RICCI......................................................EX-PARTE APPLICANT
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, Republic v Land Registrar Kilifi & another Ex-parte Daniel Ricci [2013] eKLR
JUDGMENT
1. This Judgment is in respect to the Ex-parte Applicant’s Notice of Motion dated 10th April 2012
and filed on the same day. The Motion was filed pursuant to Order 53 of the Civil Procedure
Rules. The Motion is seeking for the following orders;
a. THAT this Honourable Court do issue an order of Prohibition to prohibit the Land
Registrar, Kilifi (1st Respondent) from dealing adversely with Title No.
Chembe/Kibabamshe/427.
b. THAT this Honourable Court do issue an order of Certiorari for purpose of quashing the
decision of Land Registrar, Kilifi, revoking Title NO. Chembe/Kibabamshe/427 contained in
the Kenya Gazette Notice No.15444 of 21st November 2011.
c. THAT the cost of this Application be in the cause.
2. The Application is grounded on the statutory statement, the Ex-parte Applicant’s affidavit and on
the grounds which are on the face of the Application.
3. The Ex-parte Applicant’s case, principally, is that he is the genuine registered owner of all that
parcel of land known as Chembe/Kibabamshe/427 (the suit property) and that the Registrar of
Lands, Kilifi lands registry exceeded his Jurisdiction when he decided to gazette the revocation of
the Applicant’s title in respect to his parcel of land disregarding the Applicant’s right of
ownership.
4. According to the Ex-parte Applicant, the revocation of the title in respect to the suit property was
irregular, unlawful and in contravention of Article 40 of the Constitution and further that the
Registrar of lands acted in breach of the rules of natural justice in disregarding the interests and
rights of ownership of the Applicant in Chembe/Kibabamshe/427 and did not accord the Applicant
an opportunity to be heard before the gazettement and revocation of his title.
5. The court granted the Ex-parte Applicant leave to commence these proceedings on 19th March
2012.
6. The Ex-parte Applicant has deponed in his Verifying Affidavit that he is the registered owner of
the suit property; that he bought the suit property from Omar Khamis Baleith vide an agreement
dated 21st February, 2001 and that before the transfer of the property in his name, he obtained
the consent of the Land Control Board.
7. The Ex parte Applicant further deponed that the High Court adjudicated upon the suit property in
Nairobi HCCC 3374 of 1994 and ruled with finality that the suit property was private land and not
government land.
8. The 1st Respondent filed his Replying Affidavits on 29th May 2013. Mr. Benrick Ogutu, the
Principal Fisheries Officer filed his affidavit on the same day.
9. The 1st Respondent deponed that the Gazette Notice number 15444 of 9th December 2011
cancelled and revoked the registration of the suit property because the land was acquired
irregularly and the allocation was illegal and unconstitutional because the land has always been
public land; that the suit property was reserved as a fish landing site and that the Applicant
always had knowledge that the suit property was not available for allocation.
10. It was further deponed that the registration section of Chembe/Kibabamshe was marked with
serious and graving irregularities during the adjudication process hence prompting the
Government to recall and cancel the original adjudication process and opened a new edition of a
green card on 22nd December 1986; that the suit property was registered on 25th October, 1990
but there are no records to show that the Government consented to the allocation of the land to
the Applicant; that there was no consent by the Land Control Board for the transfer of the land to
the Applicant; that the transfer was never captured in the presentation book and that the Title
Deed was issued unprocedurally.
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REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
JUDICIAL REVIEW APPLICATION NO. 6 OF 2012
IN THE MATTER OF: ORDER 53 RULES 1 AND 2 OF THE CIVIL
PROCEDURE RULES ACT (CAP 21 LAWS OF KENYA)
AND
IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW FOR
ORDERS OF PROHIBITION AND CERTIORARI
BY DANIEL RICCI
AND
IN THE MATTER OF: ARTICLE 23 AND 40 ON THE CONSTITUTION
OF KENYA
AND
IN THE MATTER OF: CHEMBE/KIBABAMSHE/427
BETWEEN
REPUBLIC ...................................................................................APPLICANT
=VERSUS=
1. LAND REGISTRAR KILIFI
2. THE ATTORNEY GENERAL...........................................RESPONDENTS
AND
DANIEL RICCI......................................................EX-PARTE APPLICANT
http://www.kenyalaw.org - Page 1/5
, Republic v Land Registrar Kilifi & another Ex-parte Daniel Ricci [2013] eKLR
JUDGMENT
1. This Judgment is in respect to the Ex-parte Applicant’s Notice of Motion dated 10th April 2012
and filed on the same day. The Motion was filed pursuant to Order 53 of the Civil Procedure
Rules. The Motion is seeking for the following orders;
a. THAT this Honourable Court do issue an order of Prohibition to prohibit the Land
Registrar, Kilifi (1st Respondent) from dealing adversely with Title No.
Chembe/Kibabamshe/427.
b. THAT this Honourable Court do issue an order of Certiorari for purpose of quashing the
decision of Land Registrar, Kilifi, revoking Title NO. Chembe/Kibabamshe/427 contained in
the Kenya Gazette Notice No.15444 of 21st November 2011.
c. THAT the cost of this Application be in the cause.
2. The Application is grounded on the statutory statement, the Ex-parte Applicant’s affidavit and on
the grounds which are on the face of the Application.
3. The Ex-parte Applicant’s case, principally, is that he is the genuine registered owner of all that
parcel of land known as Chembe/Kibabamshe/427 (the suit property) and that the Registrar of
Lands, Kilifi lands registry exceeded his Jurisdiction when he decided to gazette the revocation of
the Applicant’s title in respect to his parcel of land disregarding the Applicant’s right of
ownership.
4. According to the Ex-parte Applicant, the revocation of the title in respect to the suit property was
irregular, unlawful and in contravention of Article 40 of the Constitution and further that the
Registrar of lands acted in breach of the rules of natural justice in disregarding the interests and
rights of ownership of the Applicant in Chembe/Kibabamshe/427 and did not accord the Applicant
an opportunity to be heard before the gazettement and revocation of his title.
5. The court granted the Ex-parte Applicant leave to commence these proceedings on 19th March
2012.
6. The Ex-parte Applicant has deponed in his Verifying Affidavit that he is the registered owner of
the suit property; that he bought the suit property from Omar Khamis Baleith vide an agreement
dated 21st February, 2001 and that before the transfer of the property in his name, he obtained
the consent of the Land Control Board.
7. The Ex parte Applicant further deponed that the High Court adjudicated upon the suit property in
Nairobi HCCC 3374 of 1994 and ruled with finality that the suit property was private land and not
government land.
8. The 1st Respondent filed his Replying Affidavits on 29th May 2013. Mr. Benrick Ogutu, the
Principal Fisheries Officer filed his affidavit on the same day.
9. The 1st Respondent deponed that the Gazette Notice number 15444 of 9th December 2011
cancelled and revoked the registration of the suit property because the land was acquired
irregularly and the allocation was illegal and unconstitutional because the land has always been
public land; that the suit property was reserved as a fish landing site and that the Applicant
always had knowledge that the suit property was not available for allocation.
10. It was further deponed that the registration section of Chembe/Kibabamshe was marked with
serious and graving irregularities during the adjudication process hence prompting the
Government to recall and cancel the original adjudication process and opened a new edition of a
green card on 22nd December 1986; that the suit property was registered on 25th October, 1990
but there are no records to show that the Government consented to the allocation of the land to
the Applicant; that there was no consent by the Land Control Board for the transfer of the land to
the Applicant; that the transfer was never captured in the presentation book and that the Title
Deed was issued unprocedurally.
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