I. Preliminaries.
1. The Judgement of this Honourable Court pertains to a Constitution Petition instituted by “Kamakawaida Property Limited, Snapdragon Enterprises Limited and Pauline Anne Vaughan & Ruth Anita Vaughan”, the 1st, 2nd & 3rd Petitioners herein through a Petition dated 16th January 2025. It was against “the Land Registrar, Kwale, The Attorney general and Linda Hamilton Archer”, the 1st, 2nd & 3rd Respondents herein.
2. Upon service all the Respondents filed their Responses accordingly. The Honourable Court shall be dealing with them at a later stage of this Judgement herein.
II. Parties in the Petition.
3. The 1st and 2nd Petitioners describe themselves as limited companies incorporated under the Companies Act, of 2015 in Kenya. The 2nd Petitioner describes herself as the Executor of the Estate of the late Anne Vaughan. The 1st Respondent is described as a public officer appointed pursuant to the Provisions of Section 12 of the Land Registration Act, No. 3 of 2012.
4. The 1st Respondent is said to be in charge of registration of titles at Kwale County Land Registry. The 2nd Respondent is the Attorney General thus the Government and principal Legal Adviser to it established under the provision of Article 156 of the Constitution of Kenya, 2010.
III. Facts of the Petition.
5. The Petitioners were said to be separately the legal registered and beneficial owners of: -
a). The 1st Petitioner - all that property known as Land Reference Numbers Kwale/ Diani Beach Block/ 1752;
b). The 2nd Petitioner – all that property known as Land Reference Numbers Kwale/ Diani Beach Blocks 1746, 1748, 1749, 1750 and 1751.
c). The 3rd Petitioner – all that property known as Land Reference Numbers Kwale / Diani Beach Blocks/ 1745 and 1747.
6. The 1st Respondent in a letter signed by Mr. S. N Mokaya, the Land Registrar, Kwale, dated 21st November 2024 was said to have written a joint notice of surrender for cancellation of Certificates of Lease and the lease instruments in the Petitioners’ possession relating to the suit property for cancellation. The 1st Respondent stated that the said lease instruments and certificates in possession of the Petitioners originated from Parcel Numbers 806, 807 and 808 respectively which titles had been closed and whatever the Petitioners were holding was termed as null and void documents. The Petitioners were informed that the said registration of ownership documents same would be degazetted within 7 days from the date of letter.
7. Subsequently, the Petitioners termed the said letter unconstitutional, irrational, unfair and draconian. According to them, the sub - division of Kwale/ Diani Beach Blocks 806, 807 and 808 were done on the understanding that there were no encumbrances registered against them. Indeed, that the sub - division was done when there was an alleged Court Order prohibiting sub - division, that the subdivision was in breach of a Court Order and that the Land Registers/Green cards for parcel land reference numbers Kwale/ Diani Beach Blocks 806, 807, 808 were not closed by his office after the subdivision, the documents held by the Petitioners were all null and void.
8. The Petitioners averred that they acquired their property without any illegality for valuable consideration. From the available records, the 1st Petitioner was said to have acquired its leasehold interests for valuable consideration vide instrument of transfer dated 5th May 2021 and registered on 19th May 2021. The 2nd Petitioner acquired its interests vide instrument dated 5th May 2021 and registered on 19th May 2021 while the 3rd Petitioner acquired vide transfer instrument dated 5th March 2019 and registered on 2nd December 2019.
9. The Petitioners stated that the suit properties were created following amalgamation and sub - division of parcels previously known as Kwale/Diani Beach Blocks 806, 807 and 808, the mother titles. At the time amalgamation was done the Petitioners were not registered owners and it was undertaken by previous owners and relevant approvals sought. The Petitioners states they did due diligence and there were no impediments or encumbrances noted in the Land Register/ Green card and in particular there was no Court Order noted in the register.
10. The 3rd Petitioner stated that Anne Vaughan passed away on 21st November 2024 and the notice issued by the 1st Respondent was addressed to a Deceased person. The Petitioners stated that during their due diligence they became aware of the suit “Mombasa ELC No. 345 of 2017 formerly Nairobi High Court Civil Case No. 320 of 2012. The Plaintiffs in the said case were James Archer and Joana Archer and the Defendants were Inger Christine Archer, Arnellisa Archer – Clark and Hellen Kay Hertley. The Petitioners had gone a great length to describe the case in the Trial Court and the Appeal. The Petitioners also stated that they were not parties to the case at the Trial Court and the Appellate Court. The Petitioners stated that their interests were recognized and affirmed by the Court of Appeal in its Judgement which the 3rd Respondent was now seeking to review. In a nutshell, the Petitioners termed the actions of the 1st Respondent unlawful, illegal and irregular.
IV. The Reliefs sought.
11. From the filed Petition, the 1st, 2nd & 3rd Petitioners prayed for:-
a) A declaration that the notice to surrender for cancellation dated 21st November 2024 issued to the Petitioners by the 1st Respondent by which he purports to demand that the Petitioners surrender for cancellation their respective registered lease instruments together with their respective corresponding Certificates of Leases in Kwale/ Diani Beach Blocks 1745, 1746, 1747, 1748 , 1749, 1750, 1751 and 1752 and by further threatens to degazette the lease instruments together with the respective corresponding Certificates of Lease amounts to deprivation of the Petitioners respective registered leasehold interests in the suit properties without regard to due process of the law and consequently gross violates the Petitioners right to property as enshrined under Article 40 of the Constitution.
b) A declaration that in any event, the extremely short, capricious, arbitrary and patently unreasonable seven (7) days’ notice given to the Petitioners by the 1st Respondent in his impugned letter dated 21st November 2024 by which required the Petitioners to surrender their respective registered lease instruments and their respective corresponding certificates for the suit properties amounts to a gross violation of the Petitioners rights to be heard and / or afforded a reasonable opportunity to be heard prior to an adverse decision being taken and executed against them grossly violates the Provisions of Articles 47 and 50 (1) of the Constitution.
c) A declaration that the decision of the 1st Respondent Land Registrar to in any event proceed and degazette the Petitioners’ respective registered Lease Instruments and respective corresponding Certificates of Lease for the suit properties upon the expiry of the extremely short, capricious, arbitrary and patently unreasonable seven (7) days’ notice with effect from 21.11.2024 in any events amounts to a gross violation of the Petitioners’ right to be heard and/or to be afforded a reasonable opportunity to be heard prior to an adverse decision is taken and executed against them and consequently grossly violates the Provisions of Articles 47 and 50 (1) of the Constitution of Kenya, 2010.
d) A declaration that by making a determination adverse to the rights of the Petitioners on the contrived basis of alleged irregularities in the subdivision process which was conducted by the previous registered proprietors of the suit properties with the approval of and oversight by the National Government through the Ministry of Lands (including even by the 1st Respondent’s Office itself) and also with the approval of the County Government, Kwale, without first granting the Petitioners a fair hearing in the form of a reasonable opportunity to be heard on their defense, the 1st Respondent breached and continues to breach his obligation to take fair administrative action pursuant to the Provisions of Section 4 of the Fair Administrative Actions, 2015.
e) A declaration that the 1st Respondent, in the absence of an order issued by a Court of competent jurisdiction cancelling or directing the cancellation of the Petitioners’ title and interest in the suit properties, had no power and has no power, constitutional, statutory, administrative or otherwise, to demand that the Petitioners surrender their respective registered Lease Instruments together with the respective corresponding Certificates of Lease for the suit properties to his office for cancellation.
f) A declaration that the 1st Respondent, in the absence of an order issued by a Court of competent jurisdiction cancelling or directing the cancellation of the Petitioners title and interest in the suit properties, had no power and has no power, constitutional, statutory, administrative or otherwise, to degazette or cause to be degazetted the Petitioners’ respective Lease Instruments and/or their corresponding respective Certificates of Lease for the suit properties.
g) A judicial review order of certiorari, to bring before this Court and to quash the notice to surrender for cancellation dated 21st November 2024 issued to the Petitioners by the 1st Respondent.
h) A declaration that any other or further action taken by the 1st Respondent which is adverse to the Petitioners’ respective registered leasehold interests in the suit properties taken by the 1st Respondent on the basis of the purported notice to surrender for cancellation dated 21st November 2024 and/or on any other subsequent basis including any gazette notice published by, procured by or on behalf of the 1st Respondent purporting to degazette the Petitioner’s respective Lease Instruments and corresponding Certificates of Lease is null and void ab niito.
i) A judicial review order of certiorari to bring before this Court and quash any gazette notice published or caused to be published by or procured by or on behalf of the 1st Respondent degazetting , purporting to degazette, deregister or otherwise cancel the Petitioners’ respective Lease Instruments and/or the corresponding Certificates of Lease for the Lease properties and/or any restrictions or caveats or any other impediments so far registered by the 1st Respondent in respect of the suit properties.
j) A Judicial Review Order of Mandamus to compel the 1st Respondent to forthwith and in any event within seven (7) days of the making of this order, to publish a gazette notice of similar size and prominence in the Kenya Gazette at own cost cancelling and/or vacating any previous gazette notice published or caused to be published by or procured by or on behalf of the 1st Respondent degazetting, purporting to degazette, deregister and/or otherwise cancel the Petitioners’ respective Lease Instruments and/or the corresponding Certificates of Lease for the suit properties.
k) A permanent injunction to permanently restrain the 1st Respondent and/or any person for the time being discharging the functions of the office of the Land Registrar, Kwale County, from attempting to degazette, deregister, cancel and/or otherwise take any actions or further actions whose effect would be adverse to the Petitioners’ respective registered leasehold interests in the suit properties.
l) Any other or further relief which this Court may, in the interest of justice, deem just and expedient given the circumstances of this case.
m) The costs of this Petition be borne by the 1st Respondent in person.
V. The responses to the Petition by the 1st and 2nd Respondents.
12. Upon perusal of the record, the Court has found no responses filed by the 1st and 2nd Respondents. It has noted that on 19th March 2025, the matter came up for mention to confirm filing of responses to the Petition. Mr. Murithi Advocate for the Petitioners indicated he had received responses from the 1st and 2nd Respondents and sought leave of 21 days to file further affidavit. Mr. Murithi stated he had not received any response from the 3rd Respondent. Mr. Wagah Advocate for the 1st and 2nd Respondents confirmed that he had filed a response through a Replying Affidavit. Mr. Kinyua Advocate holding brief for Mr. Harriet Seth stated he had not been served with any responses.
VI. The responses to the Petition by the 3rd Respondent.
13. The 3rd Respondent raised an objection through a Notice of Preliminary Objection dated 24th March 2025. The objection raises nine ( 9 ) issues to which are summarized as follows that:-
a) the Honourable Court lacks jurisdiction to entertain the Petition as the issues raised relate to an administrative decision of the Chief Land Registrar which ought to be challenged through judicial review and not a Constitutional Petition.
b) the Petition was incompetent, misconceived and an abuse of the Court process as the Petitioners had failed to invoke the proper procedural mechanism provided in law for review of administrative actions
c) the Petitioners had failed to exhaust the remedies provided under Section 86 (1) of the Land Registration Act, 2012 which stipulates that any person aggrieved by the exercise of the powers of the Registrar shall first seek redress through established mechanisms before approaching the Court as such the Petition is not properly before the Court.
d) failure to exhaust the alternative remedies available under Section 86 (1) of the Land Registration Act, No. 3 of 2012 disentitles the Petitioner from audience before the Honourable Court in line with doctrine of exhaustion of remedies.
e) the Petition failed to meet the threshold established in the case of “Anarita Karimi Njeru - Versus - Republic (1979) eKLR”.
f) The principles founded in the case of:- “the Speaker of the National Assembly - Versus - Karume (1992) eKLR applied which requires that where alternative remedy is provided in law, it must be pursued before resorting to constitutional litigation.
g) The Petition was an attempt to bypass procedural safeguards as the Petitioner had the opportunity to challenge administrative action through Judicial Review or through Statutory Dispute Resolution mechanism but failed to do so.
h) The Court should uphold the principle of constitutional avoidance.
i) In absence of a demonstrated violation of Constitutional rights and with the availability of alternative statutory remedies the Petition should be struck out.
VII. The responses by the 3rd Respondent
14. The 3rd Respondent also filed Replying Affidavit sworn on 21st July 2025. The 3rd Respondent stated that:-
a) she applied to be joined to the proceedings upon learning that the Petitioners were seeking to sanitize fraudulent titles that were subject of a pending Review Application before the Court of Appeal filed through Notice of Motion Application dated on 8th March 2023 which was certified urgent on 14th March 2024.
b) James Howard Archer was a party to the Court of Appeal proceedings in Civil Appeal No. 39 of 2020 as the Appellant. By virtue of the Judgement delivered on 17th March 2023, the beneficial interests as follows: -
i. 25% beneficial interests to the Estate of James Howard Archer.
ii. 25% beneficial interests to the Estate of Robert Howard Archer.
iii. 25% beneficial interests to Joanna Trent.
c). accordingly, the 3rd Respondent acted for 75% percent of the total beneficial interests in trust properties which form the subject of the Petition.
d) The Court of Appeal in a Judgement delivered on 17th March 2023 arising from the Civil case “Mombasa Environment and Land Court Case No. 345 of 2017 (formerly Nairobi ELC No. 320 of 2020).
e) The Petitioners had distorted the Judgement, in truth it is said that the Court of Appeal found that the founders of the Petitioners were unjustly enriched and that the property had been transferred to third parties not before the Court.
f). The determination was said to have been made without the benefit of the evidence of fraud which was now the subject of the Review Application which renders the matter sub - judice.
g). The 3rd Respondent faulted the Petitioners for falsely asserting that titles were acquired for valuable consideration however the transfer of titles Kwale/ Diani Beach Block Nos. 1746, 1748-1751 clearly state a peppercorn transaction to the 2nd Petitioner and transfer of Kwale/ Diani Beach Block Nos. 1752 to the 1st Petitioner also reflected a peppercorn transaction.
h). The 3rd Respondent questioned the due diligence conducted by the Petitioners. It stated that the Petitioners had failed to explain how titles of the suit properties were produced during the Court Order prohibiting any dealings.
i). Further, that determination of ELC 345 of 2017 did not automatically discharge a Court ordered prohibition.
k). the Petitioners conceded that the titles were issued in 2018 during the pendency of ELC 345 of 2017.
l). that Gazette Notice No. 1108 of 31st January 2025 issued by the Land Registrar declared the sub - divisions null and void and of no legal effect.
m). The 3rd Respondent stated that the mother titles constituted a trust property and the sub - division of the mother title occurred during pendency of a case in Court and whilst the prohibition was in force thereby rendering the resultant titles void and tainted. The 3rd Respondent states that the Petitioners acknowledge the Application for Review as such the matter is sub - judice.
n). The Petitioners was also said to be forum shopping with the intention of circumventing the Application for Review.
o). The Court of Appeal determined that the founders held properties on trust and were justly enriched. The Petitioners were said to be seeking constitutional protection in respect of titles which they know were fraudulently acquired.
p). Further, it was said that this Court lacks jurisdiction to determine matters of fraud, illegality or irregularity of land titles which are subject of an Application for Review at the Court of Appeal.
p). The 3rd Respondent was advised and believes that the 1st Respondent acted lawfully within statutory authority under Sections 79 (1) & ( 2 ) of the Land Registration Act, No. 3 of 2012 pursuant to the directions issued by the Chief Land Registrar and the director of Land Administration and existing Court Order.
q). They urged the Court to dismiss the Petition.
VIII. Submissions.
15. On 19th February, 2025 while all parties were present before the Honourable Court, they were directed that the Petition and the Preliminary Objection be canvassed by way of written submissions. Pursuant to that all parties obliged accordingly. Indeed, on 29th July, 2025 all the Learned Counsels - Mr. Muthama, Mr. Mureithi, Mr. Wagah and Mr. Kinyua Kamundi Advocates were accorded an opportunity to orally highlight their written submissions. Accordingly, they executed their professional mandates with great humility, resilience, devotion, dedication and diligence. The Honourable Court was extremely grateful to them for depicting these virtures and particularly being mentors to the younger professionals in the legal fraternity.
A. The 3rd Respondent’s submissions in respect of the Preliminary Objection.
16. Through the Law firm of Messrs. Harith Sheth Advocates, the 3rd Respondent filed Submissions on the objection and the Petition and the objection. The submission was dated 5th May 2025.
17. To begin with, Mr. Kinyua Kamundi Advocate acting on behalf of the 3rd Respondent commenced his submissions by stating that with great humility he would be critically assessing the Replying Affidavit filed by the Land Registrar, Mr. S.N Mokaya and the submissions by Mr. Wagah Advocate for the Attorney General. He found their contents in total conflict with the Law and facts. He argued that he knew as Advocates at times one would be caught in a conflicting position or interest. To him, where an Advocate was found such circumstances the best decision would be to cease acting for the client under Order 9 Rule 13 of the Civil Procedure, Rules, 2010 rather than to continue in the matter to avoid conflict interest. Secondly, such a situation, to him would be putting Court in such an awkward position. It was the Attorney General who drew the pleadings – the affidavits and responses and now they seem to be going against the said contents. The Attorney Gereal had an opportunity to either concede the Petition or file a Notice of Withdrawal of the decision by the Land Registrar than to wait until the matter got to the hearing before the Court of Law.
18. With regard to the Objection by the 3rd Respondent averred that the Court lacks jurisdiction. The 3rd Respondent took a comparison of Constitutional Petition against Judicial Review proceedings. The Learned Counsel submitted that before and after promulgation of the 2010 Constitution, the primary and proper mechanism for challenging the legality, rationality and procedural propriety of administrative actions undertaken by public bodies is through Judicial Review which was historically governed by the provision of Order 53 of the Civil Procedure Rules, 2010 and Sections 8 and 9 of the Law Reform Act, Cap. 26 now read with Fair Administrative Action Act No. 4 of 2015. The 3rd Respondent makes reference to Section 7 (2) of the Act. Reliance was also placed in the case of:- O’Reilly versus Mackman (1983) 2 AC237, Judicial Service Commission - Versus - Mbalu Mutava & Another (2015) eKLR.
19. On failure to exhaust statutory remedies, the Leraned Counsel submitted that a cornerstone Principle of Administrative law, deeply embedded in Kenyan jurisprudence is the Doctrine of Exhaustion of Alternative Remedies. Where a statute provides a specific mechanism for Dispute Resolution or Appeal against an administrative decision then parties were required to exhaust that mechanism before approaching the Court. To the 3rd Respondent the Land Registration Act provides under Section 86 (1) allowed the Registrar or an Interested Party to state a case for the opinion of the Court on questions under the Act. Section 101 of the Act provides for the appeals against the decisions of the Land Registrar. Furthermore, the provision of Section 14 of the Act grants the Registrar powers to require evidence, summon witnesses and correct errors offering internal review possibilities. To the 3rd Respondent, the Petition was fatally premature. The Court lacks jurisdiction to entertain the Petition in the face of unexhausted statutory remedies accordingly this Court should decline jurisdiction.
20. As it pertains failure to meet the threshold for Constitutional Petition, the 3rd Respondent averred that the Petitioners attempt to characterize their claim as involving constitutional violations was misconceived and unavailing. The instant Petition was said to be making broad references to Articles 40, 47 and 50 but fails to articulate with the necessary precision how the alleged actions of the Land Registrar specifically violated these rights in a constitutional sense in a distinct manner from the alleged errors or procedural lapses.
21. The Learned Counsel contended that that the Petition pleads an administrative law case under the disguise of a constitutional violation. The Petition was said it does not demonstrate a violation of constitutional rights which cannot be adequately addressed through Judicial Review or the mechanisms established under the Land Registration Act. In conclusion, the Learned Counsel reiterated that the Petition lacks specificity rendering the Petition fatally defective and ripe for dismissal.
22. Turning as to whether the Petition is an abuse of Court process and the Principle of Constitutional avoidance. The Learned Counsel submitted that the Petition was an abuse of Court process. By framing their grievance as a constitutional matter, the Petitioners appear as attempting to circumvent the established specific and potentially time barred procedures for challenging administrative actions under the Fair Administrative Action Act, Order 53 and the Land Registration Act. The 3rd Respondent argued that the Courts frown upon attempts to misuse Constitutional Litigation to bypass statutory routes on the basis that Courts should not decide constitutional questions where a matter may properly be decided on other grounds. It is submitted that entertaining the instant Petition would not only reward procedural impropriety but also undermine the legislative scheme established by the Land Registration Act and the Fair Administrative Action Act for resolving disputes concerning Land Registration and administrative actions, this will open floodgates for parties to package ordinary administrative or statutory disputes as constitutional matters thereby overburdening the Constitutional Courts and subverting established legal procedures.
23. With regard to the Submissions by the 2nd and 3rd Petitioners, the Learned Counsel referred Court to contents of Page 422 under Paragraph 15 of the Petition. He held that they were not parties to the Environment & Land Court and the Court of Appeal civil suits. the Civil is Petition. He argued that the Court had been forewarned to be careful not to look at the evidence adduced before the ELC differently constituted and COA. To him, the best option for the parties were to hold on and await the outcome of the COA to make its determination rather than come back to the ELC. The parcels in the eight ( 8 ) lease were said to have been sub – divisions of Plot Nos 806, 807 and 808 which were all subject before the ELC.
24. According to the Counsel, when titles were cancelled they would revert back to the original position/numbers. To buttress on this point, the Learned Counsel refrred Court to the Contents of Pages 111 - under Paragraphs 9, 10, 11, 17 & 19 of the affidavits sworn by Mr. Steve Mokaya, the Land Registrar, Kwale – it indicates that the title deeds were never cancelled. Indeed if one was to conduct an official search today, the original parcels being Numbers 806, 807 and 807 respectively would be reflected. To support his argument, the Learned Counsel cited the case of “Petition No. 8 of E010 of 2021 - Dina Management Limited – Versus – County Government of Mombasa & 5 Others” of which main legal import was intended to preserve properties. To him the three ( 3 ) parcels were still intact. All the eight ( 8 ) parcels had restrictions registered against them and they were subject of an investigation by the DCIO. He stressed that the Petitioners were not part to the ELC. The Petition was only filed to cover the eight ( 8 ) parcels.
25. In conclusion, the Learned Counsel prayed that the Court upholds the Preliminary Objection and dismiss the Petition with costs.
B. The Written Submissions by the Petitioners in respect of the Notice of Preliminary Objection.
26. The law firms of Messrs. Munyao, Muthama & Kashindi Advocates on behalf of the Petitioners filed their Written Submissions dated 8th June 2025. Mr. Muthama Advocate commenced by stating in Respect of whether the Petition offended the Doctrine of Exhaustion of available remedies was that the Land Registration Act, No. 3 of 2012 as well as the Land Act, No. 6 of 2012 recognize and provide that the jurisdiction to hear and determine the issues and matters arising from the two statutes lies with the Court, a creature of the Constitution as per Article 162 and Section 13 of the Environment and Land Court Act.
27. The Learned Counsel stated that they were properly before this Court. Further, the Petitioners states that they attempted to invoke and exhaust the alternative mechanisms provided under the Land Registration Act. The Petitioners states that upon receipt of the notice to surrender for cancellation contained in a letter dated 21st November 2024 they formally objected by a letter dated 13th December 2024 and objected to surrender their respective Lease Instruments and Certificates for cancellation. The Land Registrar was said to have elected not to respond to the letter or even invite the Petitioners for hearing.
28. In addition, the Learned Counsel submitted that following Gazette Notice dated 31st January 2025, the Petitioners by a letter dated 10th March 2025 once again objected to the intended cancellation. To the Petitioners the Court is being asked to examine the cancellation of the Petitioners respective Leases and Certificates of Leases by the 1st Respondent. It was submitted that the Land Registrar had no power to cancel or revoke a Certificate of Title as such there is no alternative remedy that exists save for the Court. It is submitted that under Section 9 (4) of the Fair Administrative Action Act, the Court retains jurisdiction to intervene in circumstances even where alternative remedy exists. In the present case, the Petitioners allege violation of their constitutional rights and fundamental freedoms relating to property and fair administrative action which only this Court has jurisdiction and not the Land Registrar. The Counsel averred that the Petitioners were rightly before the Court.
29. In response as to whether the Petition offends the Doctrine of Constitutional Avoidance. The Learned Counsel asserted that the provision of Section 7 (1) of the Fair Administrative Action Act is not couched in mandatory terms. The Petitioners stated that their case is primarily allegations of violations of constitutional rights and freedoms and that is what exactly they have done. Further, the Court has power to grant orders of Judicial Review to remedy violation of rights.
30. The Petitioners marshals’ submissions that the Petition meets the threshold of a Constitutional Petition as the Petitioners have pleaded with reasonable precision the Provisions of the Constitution that were infringed and the manner in which they have been infringed. To the Petitioners, the Petition contains sufficient grounds to demonstrate that the rights of the Petitioners have been infringed in great detail. In conclusion, the Petitioners submits that a Preliminary Objection relates to pure matters of law and the Court should dismiss the Preliminary Objection.
C. The Written Submissions by the Petitioners in respect of the Petition.
31. The Petitioners filed submissions dated 8th June 2025. The Petitioners indicate that the 1st and 2nd Respondents filed undated Replying Affidavit sworn by Steven Mokaya, the Land Registrar, Kwale.
32. The Petitioners stated that without doubt, the position held by the 1st Respondent wields a lot of power and influence. The 1st Respondent is said to have wielded this immense power in the most tyrannical fashion against the Petitioners. By a letter dated 21st November 2024, the 1st Respondent demanded that the Petitioners surrender their respective Lease Instruments with corresponding Certificates for cancellation in any event proceed to degazette the said documents within seven (7) days with effect from 21st November 2024 and not upon expiry of sixty (60) days.
33. The Petitioners identified three (3) issues for determination as being, whether the 1st Respondent violated the Petitioners’ right to fair administrative action; whether the 1st Respondent had the legal authority to cancel the Petitioners Leasehold Interests in the absence of a Court Order and whether there were irregularities in the subdivision of the three (3) mother titles into eight (8) properties.
34. In the first issue, the Petitioners placed reliance in the provision of Articles 47 (1) and 50 of the Constitution. And Sections 4 of the Fair Administrative Action Act. The Petitioners submit that degazetting the Petitioners respective Lease Instruments and Certificates of Leases without first granting them an opportunity to be heard in their defence then the 1st Respondent contravened the law and their rights.
35. The Petitioners opined that they were not given an opportunity to be heard prior to adverse actions which affected them. The 1st Respondent should have accorded them an opportunity to be heard.
36. In whether the 1st Respondent had the legal authority to cancel the Petitioners Leasehold Interests in absence of a Court Order, the provision of Sections 79 and 80 of the Land Registration Act, No. 3 of 2012 had been cited. The Petitioners take a view that the Land Registrar is strictly confined to rectification of errors, mistakes or omissions in the register that do not materially affect the interests of the registered proprietor. The Petitioners states that cancellation or revocation of a title can only be done by a competent Court of Law and the Land Registrar cannot cancel or revoke a title in absence of a Court Order. It is submitted that the Land Registrar acted outside the scope of her/ his authority as such it is illegal and irregular.
37. On the last issue, the Petitioner’s stated that the Respondents’ main contention was that the sub - division of the mother title to which the three (3) parcels - Kwale/ Diani Beach Plots 806, 807 and 808 was done during the pendency of the Court Order prohibiting the sub - division was not correct. It was said the decision to amalgamate the three (3) mother titles was done by the previous owners in the years 2010 - 2011 before issuance of a Court Order. The previous owners were said to have obtained necessary approvals which approvals were granted. The Court Order was said to have been issued vide consent letter dated 27th June 2012. It was not until the Court (Yano J) delivered its Judgement that the previous owners dealt with their respective interests.
38. In conclusion, the Petitioners urge the Court to grant the reliefs as sought.
VIII. The Oral Submissions by the 1st & 2nd Respondents
39. As already indicated above, on 29th July, 2025, the parties were accorded an opportunity to briefly highlighted their Submissions. Despite of the Court having perused the record, it has not found the Reply and Submissions by the 1st and 2nd Respondents.
40. Therefore, it is important that the Court reproduces the oral highlights by Mr. Wagah Advocate for the 1st and 2nd Respondents. He admitted this was one of the most difficult decision an Advocate had to make. At all costs the truth had to come out.
41. The Learned Counsel posited that he needed to bring it out on the issues of the powers of the Land Registrar on cancellation of a title. He informed Court that the powers on the rectification of the Land registry were on under the provision of Section 79 (1) & ( 2 ) of the Land registration Act, No. 3 of 2012. It vested the Land Registrar with powers on the Rectification of the land Registry by the Land Registrar pursuant to following certain laid – down procedures. For instance, the publication of a notice to that effect for 90 days of intention to rectify the title published in the Kenya Gazette. Thereafter, the Land registrar would duly enter the details in the register as per the changes . An aggrieved party may then seek recourse from Court. Otherwise, all cancellation of title was the large mandate of the Court. There ought to be a Court Order issued following the provision of Section 80 of the Land Registration Act, No. 3 of 2012 based on it having been acquired by either fraud, mission or mistake. Otherwise, a Land Registrar can never order for the cancellation of a title without backing of a Court Order. There were myriad of decision by High Court on this issue. He cited the case of “ELC (OS) No. 40 of 2019 – Harrison Kiambuthi Wanjiru & Another – Versus – District Land Registrar, Nairobi & others” where the court held as follows:-
“..the rectification by Court concerns and/or involves cancellations or amendments of title…..the Registrar does not therefore have the power to cancel title of a registered proprietor, unless under the express Order of the Court. The 1st defendant has submitted that they relied on the provision of Section 79 ( 2 ) of the Land registration Act. A reading of the said section shows that the Act makes reference to alteration of title without consent, if it is established that the error, mistake, or omission was obtained by fraud or lack of proper care. The rectification is limited to errors, mistake or omission, which do not materially affect the right of the registered proprietor”.
IX. Issues for Determination.
42. I have carefully read and considered all the filed pleadings herein, Written Submissions and the myriad authorities cited by parties, the relevant provisions of the Constitution of Kenya, 2010 and statures.
43. In order to arrive at an informed, just and reasonable decision, the Honourable Court has condensed the subject matter into six (6) salient issues which arise for determination. These are: -
a) Whether the Court has jurisdiction to hear and determine the instant Petition?
b) Whether the Petition meets the threshold of a Constitutional Petition?
c) Whether the Petition offends the Doctrine of Exhaustion of Remedies?
d) Whether the matter is sub - judice?
e) Whether the Petition has merits?
f) Who will bear the costs of the Preliminary Objection and the Petition.
X. Analysis and Determination.
ISSUE No. a). Whether the Court has jurisdiction to hear and determine the instant Petition?
44. Under this sub – title, the Honorable Court will be critically examining whether the Court his clothed with the jurisdiction to entertain the matter before it or not. The 3rd Respondent has raised Preliminary Objection dated 24th March 2025 on nine (9) grounds.
45. The nature and scope of a preliminary issue is cogently defined in the statement of Law, JA, in the case of “Mukisa Biscuit Manufacturing Co. Limited - Versus - West End Distributors Limited [1969] EA 696 at 700”:
“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit or to refer the dispute to litigation.”
46. Justice Prof JB Ojwang J (as he then was) succinctly addressed the issue of Preliminary Objection in the case of: “Oraro - Versus - Mbaja [2005] eKLR” held:-
“I think the principle is abundantly clear. A Preliminary Objection as correctly understood is now well settled. It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a Preliminary Objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed. I am in agreement that where a Court needs to investigate facts, a matter cannot be raised as a preliminary point”.
47. While Justice Kizito Magare in the case of:- “Biosystems Consultants - Versus - Nyali Links Arcade (Civil Appeal E185 of 2023) [2023] KEHC 21068 (KLR) (31st July, 2023) (Ruling) stated: -
”18. It is therefore my view that a Preliminary Objection must be based on current law, and be factual in its Constitution. It cannot be based on disputed facts or facts requiring further enquiry. In determining a Preliminary Objection only 3 documents are required in addition to the Constitution. The impugned law, the Plaint and Preliminary Objection. If you have to refer to the Defence, then the preliminary objection is untenable.
48. It is clear that Points that require much argument to establish do not meet the threshold of Preliminary Objections. So are those that need external sources of evidence to support themselves on. There would be no difference between trying a Preliminary Objection and proceeding to hearing of the issue raised if evidence were allowed in a Preliminary Objection. Turning into the instant case, the first point is that the Honourable Court lacks jurisdiction as the issues should have been raised through a Judicial Review proceeding and not a Constitutional Petition. I will combine grounds 1, 2 and 7 as hereunder.
49. The considerations for Judicial Review were aptly captured by G V Odunga, J , (as then he was) in the case of:- “Republic - Versus - Chesang (Ms) Resident Magistrate & 2 others ex parte Paul Karanja Kamunge t/a Davisco Agencies & 2 others [2017] eKLR” where he held as follows: -
“25.However, it is important to remember that Judicial Review is a special supervisory jurisdiction which is different from both (1) ordinary (adversarial) litigation between private parties and (2) an appeal (rehearing) on the merits. The question is not whether the Judge disagrees with what the public body has done, but whether there is some recognizable public law wrong that has been committed. Whereas private law proceedings involve the claimant asserting rights, Judicial Review represents the claimant invoking supervisory jurisdiction of the Court through proceedings brought nominally by the Republic. See R v Traffic Commissioner for North Western Traffic Area ex parte Brake [1996] COD 248.
26.Judicial Review is a constitutional supervision of public authorities involving a challenge to the legal and procedural validity of the decision. It does not allow the Court of Review to examine the evidence with a view of forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or through a failure for any reason to take into account a relevant matter, or through taking into account an irrelevant matter, or through some misconstruction of the terms of the Statutory Provision which the decision maker is required to apply. While the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies, it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the Court may not set about forming its own preferred view of the evidence. See Reid – Versus - Secretary of State for Scotland [1999] 2 AC 512.”
50. The provision of Article 47 of the Constitution of Kenya, 2010 and subsequent enactment of the Fair Administrative Action Act No 4 of 2015 have sought to allow the Courts to consider certain aspects of merit when considering an application for Judicial Review. The Court of Appeal in the case of “Suchan Investment Limited – Versus - Ministry of National Heritage & Culture & 3 others [2016] KLR” attempted to reconcile this expanded context as follows:
54.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. The Act provides a constitutionally underpinned irreducible minimum standard of Judicial Review; the Act is built on the values of expeditious, efficient, lawful, reasonable, impartial, transparent and accountable decision-making process in Articles 47 and 10 (2) (c) of the Constitution. The extent to which the common law principles remain relevant to Administrative Review will have to be developed on a case-by-case basis as the Courts interpret and apply the Provisions of the Fair Administrative Action Act and the Constitution. As correctly stated by the High Court in Martin Nyaga Wambora – Versus - Speaker of the Senate [2014] eKLR it is clear that the - Articles 47 and 50 (1) - have elevated the rules of natural justice and the duty to act fairly when making administrative, judicial or quasi-judicial decisions into Constitutional Rights capable of enforcement by an aggrieved party in appropriate cases.
An issue that was strenuously urged by the respondents is that the appellant’s appeal is bad in law to the extent that it seeks to review the merits of the Minister’s decision while Judicial Review is not concerned with merits but propriety of the process and procedure in arriving at the decision. Traditionally, Judicial Review is not concerned with the merits of the case. However, Section 7(2)(l) of the Fair Administrative Action Act provides proportionality as a ground for statutory Judicial Review. Proportionality was first adopted in England as an independent ground of Judicial Review in R – Versus - Home Secretary; Ex parte Daly [2001] 2 AC 532. The test of proportionality leads to a “greater intensity of review” than the traditional grounds. What this means in practice is that consideration of the substantive merits of a decision play a much greater role. Proportionality invites the Court to evaluate the merits of the decision; first, proportionality may require the reviewing Court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions; secondly, the proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations; thirdly, the intensity of the review is guaranteed by the twin requirements in Article 24(1) (b) and (e) of the Constitution to wit that the limitation of the right is necessary in an open and democratic society, in the sense of meeting a pressing social need and whether interference vide administrative action is proportionate to the legitimate aim being pursued. In our view, consideration of proportionality is an indication of the shift towards merit consideration in Statutory Judicial Review applications.
Analysis of Article 47 of the Constitution as read with the Fair Administrative Action Act reveals the implicit shift of Judicial Review to include aspects of merit review of Administrative Action. Section 7(2)(f) of the Act identifies one of the grounds for review to be a determination if relevant considerations were not taken into account in making the administrative decision; Section 7(2)(j) identifies abuse of discretion as a ground for review while Section 7(2)(k) stipulates that an administrative action can be reviewed if the impugned decision is unreasonable. Section 7(2) (k) subsumes the dicta and principles in the case of Associated Provincial Picture Houses Ltd – Versus - Wednesbury Corp [1948] 1 KB 223 on reasonableness as a ground for Judicial Review. Section 7(2)(i) and (iv) deals with rationality of the decision as a ground for review. In our view, whether relevant considerations were taken into account in making the impugned decision invites aspects of merit review. The grounds for review in Section 7(2)(i) that require consideration if the administrative action was authorized by the empowering provision or not connected with the purpose for which it was taken and the evaluation of the reasons given for the decision implicitly require assessment of facts and to that extent merits of the decision. It must be noted that even if the merits of the decision is undertaken pursuant to the grounds in Section 7(2) of the Act, the reviewing Court has no mandate to substitute its own decision for that of the administrator. The Court can only remit the matter to the administrator and or make orders stipulated in Section 11 of the Act. On a case-by-case basis, future judicial decisions shall delineate the extent of merit review under the Provisions of the Fair Administrative Action Act.
In Mbogo & Another – Versus - Shah (1968) EA 93 at 96, the Court stated that an Appellate Court will not interfere with the exercise of discretion by a Trial Court unless the discretion was exercised in a manner that is clearly wrong because the Judge misdirected himself or acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. The dictum in Mbogo v Shah (supra) and the Principles of Rationality, proportionality and requirement to give reasons for decision are pointers towards the implicit shift to merit review of administrative decisions in Judicial Review.
The essence of merit review is the power to substitute a decision. Under the Fair Administrative Action Act, there is no power for the reviewing Court to substitute the decision of the administrator with its own decision. This imposes a limit to merit review under the Act. Section 11(1)(e) and (h) of the Fair Administrative Action Act, there is no power for the reviewing Court to substitute the decision of the administrator with its own decision. This imposes a limit to merit review under the Act. Section 11(1)e/act/2015/4 Fair Administrative Action Act permits the Court in a Judicial Review Petition to set aside the administrative action or decision and or to declare the rights of parties and remit the matter for reconsideration by the administrator. The power to remit means that decision making on merits is the preserve of the administrator and not the Courts.”
102. Despite the shift from common law to codification in the Constitution and the Fair Administrative Action Act, the purpose of the remedy of Judicial Review is concerned with reviewing not the merits of the decision in respect of which the application for Judicial Review is made, but the decision–making process itself. This finding is further reinforced by the fact that though the Court in determining a Judicial Review Application may look at certain aspects of merit and even set aside a decision, it may not substitute its own decision on merit but must remit the same to the body or office with the power to make that decision. In this regard we cite the decision of Lord Hailsham LC in Chief Constable of North Wales Police v Evans (1982) 3 All ER at pg 141 said of the remedy of Judicial Review as follows:
It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual Judges for that of the authority constituted by law to decide the matters in question. The Court will not, however, on a Judicial Review Application act as a “Court of Appeal” from the body concerned, nor will the Court interfere in any way with the exercise of any power or discretion which has been conferred on that body, unless it has been exercised in a way which is not within the body’s jurisdiction, or the decision is Wednesbury unreasonable. The function of the Court is to see that lawful authority is not abused by unfair treatment. If the Court were to attempt itself the task entrusted to that authority by the law the Court would, under the guise of preventing the abuse of power be guilty itself of usurping power.” [Emphasis added]
103. The High Court in exercising its mandate to hear Constitutional Petitions, it does so pursuant to Articles 22, 23 and 165 of the Constitution. Article 22(1) provides as follows:
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.”
104. Article 23(1) provides as follows:
23. (1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights”.
107. The Court when determining a Constitutional Petition is empowered to look beyond the process and not only examine but delve into the merits of a matter or a decision. The essence of merit review is the power to substitute a decision which the Court can do when determining a Constitutional Petition. Further the Court is further empowered to grant not just Judicial Review Orders but any other relief it deems fit to remedy any denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
108.We arrive at the inescapable conclusion that the High Court in determining a Judicial Review Application, exercises only a fraction the jurisdiction it has to determine a Constitutional Petition. It therefore follows that a determination of a Judicial Review Application cannot be termed as final determination of issues under a Constitutional Petition. The considerations are different, the Orders the Court may grant are more expanded under a Constitutional Petition and therefore the outcomes are different”.
51. I dare say that the importance of jurisdiction cannot be emphasized any more than it has already been done since the decision of the “Owners of Motor Vessel “Lillian S” – Versus - Caltex Oil Kenya Ltd [1989] KLR 1” where it was stated:-
“Jurisdiction is everything. Without it, a Court has no power to make one step. Where a Court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence and a Court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.”
52. It is trite law that Jurisdiction is a fundamental issue. It is the heart by which a Court of Law hears and determines and matter. I find the issue of jurisdiction as correctly pleaded in the Notice of Preliminary Objection as a matter of law. However, in the instant case, the Court in hearing a Constitutional Petition may very well arrive at the same conclusion as the Court hearing a Judicial Review Application. However, the considerations right from the outset are different, the procedures are different, the reliefs that the Court may grant are different, the Court will be playing fairly different roles.
53. The Petitioners have set out the rights alleged to have been infringed by the 1st Respondent particularly Articles 40, 47 and 50. Notably, this Court is also clothed with jurisdiction to issue Judicial Review reliefs. I have no doubt that the Honourable Court has jurisdiction to hear the matters relating to violations of human rights and fundamental freedoms. Further, this court has the jurisdiction to examine administrative decisions of the 1st Respondent in a Constitutional Petition.
ISSUE No. b). Whether the Petition offends the Doctrine of Exhaustion of Remedies?
54. In this issue, the Court will examine grounds 3, 4, and 6 which the 3rd Respondent states that there are alternatives which the Petitioners ought to have first exhausted before coming to Court thus constitutional avoidance. This Doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in the case of:- “Speaker of National Assembly – Versus - Njenga Karume [1992] KLR 21” in the following oft-repeated words: -
“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures”.
55. There are numerous decisions which Courts have on a number of occasions discussed the exhaustion Doctrine. In an expanded Bench of the “High Court in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others - Versus - Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR, the Court stated as follows: -
“52.The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of Law on an action without pursuing available remedies before the agency itself. The exhaustion Doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages Alternative Dispute Resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R versus Independent Electoral and Boundaries Commission (IEBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the while making reference to Speaker of National Assembly v Karume [1992] KLR 21 opined thus:
43.While this case was decided before the Constitution of Kenya, 2010 was promulgated, many cases in the post-2010 era have found the reasoning sound and provided justification and rationale for the Doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the Doctrine”.
56. Similarly, in the case of:- “Geoffrey Muthiga Kabiru & 2 others - Versus - Samuel Munga Henry & 1756 others [2015] eKLR, the Court of Appeal stated that:
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The Exhaustion Doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution”.
57. The Court also dealt with the exceptions to the Doctrine of Exhaustion. It expressed itself as follows: -
“59.However, our case law has developed a number of exceptions to the Doctrine of Exhaustion. In R. v Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion Doctrine, the High Court described the first exception thus: -
What emerges from our jurisprudence in these cases are at least two (2) Principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others – Versus - Aelous (K) Ltd and 9 Others.)
60. As observed above, the First Principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.
61. The Second Principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that Statutory Provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.
62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the Doctrine of Exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court”.
58. In the instant case, the 3rd Respondent states that there exist alternative mechanisms under Section 86 (1) of the Land Registration Act which provides: -
86. 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).
59. This Court agrees with the above authorities. It is well settling Principle that where there exists an alternative for resolving disputes outside the Court then that procedure must be adhered to before the matter is brought to the Court, the Court is the last forum. This is in line with Article 159 of the Constitution which commands Courts to encourage Alternative means of Dispute Resolution mechanism. In the instant case, it is not correct that there exists alternative procedure. Even the Provision relied is clear that any person aggrieved by the Land Registrar in exercise of his powers is to move the Court to review the decision. In my mind, the term “review” as used does not simply mean Judicial Review. Therefore, this Court comes to inescapable finding that the Petition does not offend the Principle of Exhaustion of remedies.
ISSUE No. b). Whether the matter offends the doctrine of “sub judice”?
60. The provision of Section 6 of the Civil Procedure Act, Cap. 21 on Stay of suit provides: -
No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed. Explanation. -The pendency of a suit in a foreign Court shall not preclude a Court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court.
61. The Supreme Court in the case of:- “Kenya National Commission on Human Rights - Versus - Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR” stated: -
“67. The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the Sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before Courts with jurisdiction, the matter that is filed later ought to be stayed in Order to await the determination to be made in the earlier suit. A party that seeks to invoke the Doctrine of Res Sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before Courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.
68. In the above context, it cannot be denied that the issues and prayers sought by the Petitioner in the two Constitutional Petitions generally call for the interpretation and application of Provisions of Chapter Six of the Constitution. The issues and Orders in the two Constitutional Petitions substantially ascend from the criteria for the implementation of the Provisions of Chapter Six of the Constitution. For the High Court to sufficiently pronounce itself in the two Constitutional Petitions, it has to interpret and apply the Provisions of Chapter Six of the Constitution on leadership and integrity.
69. In Constitutional Petition No. 142 of 2017, the Petitioner challenges the constitutionality of the Working Group as well as the criteria on the implementation of the Provisions of Chapter Six of the Constitution as established by the Working Group. The High Court has therefore been tasked to examine the constitutionality or otherwise of the criteria so established by the Working Group.
70. In Constitutional Petition No. 68 of 2017 the Petitioner therein challenges requirement for clearance by the state and private organs on grounds that it threatens and violates the Provisions of the Constitution. For the High Court to determine the constitutionality of the requirement for clearance challenged by the Petitioner in Constitutional Petition No. 68 of 2017 or the Working Group criteria as well as the ‘Resolution on Complimentary Framework of Collaboration by Agencies to Ensure Compliance with Leadership and Integrity Requirements in August 2017 General Elections’ and ‘Compliance with Leadership and Integrity Requirements in the 2017 General Elections’ challenged in Constitutional Petition No. 142 of 2017, it has to examine, interpret and apply the Provisions of Chapter Six of the Constitution.
71. In so doing, the High Court shall be compelled, to determine whether a Constitutional test is set up in Chapter Six of the Constitution, whether the set test (if any) is fit and proper, objective or subjective, the scope of application of the test, the implementing organs and bodies. These are substantially the same issues subject of the Advisory Opinion sought by the Applicant comprised at Pages 13 to 19 of the Reference before the Court.
72. We therefore find that this Reference, as framed, mainly raises issues of Constitutional interpretation. These issues are also substantially in issue before the High Court in Constitutional Petition No. 68 of 2017 and Constitutional Petition No. 142 of 2017. In view of Article 165 of the Constitution, the High Court is the Court of first instance with regard to jurisdiction for interpretation and application of the Constitution and that Court has already been moved.
73. Guided therefore by these Principles, and in exercise of our discretion, we decline to exercise our jurisdiction under Article 163(6) of the Constitution. This Reference is Sub-judice and this Court will not usurp the High Court’s jurisdiction under Article 165 (3).
62. The learned Justice John M. Mativo, as then he was in the case of:- “Republic - Versus - Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR stated:-
“25. In a fairly recent decision of this Court, namely JR No. 146 of 2020, which incidentally involved the Law Society of Kenya, I stated that the words "directly and substantially in issue" are used in contradistinction to the words "incidentally or collaterally in issue." Therefore, sub judice would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject- matter in both the proceedings is identical.
26. Paraphrasing what I said in the above case, the key words in applying sub judice rule is that "the matter in issue is directly and substantially in issue in the previously instituted suit." The test for applicability of the sub judice rule is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. As concluded earlier, the answer to this question is a resounding yes. However, when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit or suits.
27. As the High Court of Uganda held in Nyanza Garage v Attorney General: - [12]
“In the interest of parties and the system of administration of justice, multiplicity of suits between the same parties and over the same subject matter is to be avoided. It is in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. Secondly, a multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and creating and or adding to the backlog of cases Courts have to deal with. Parties would be well advised to avoid a multiplicity of suits.”
28. At the risk of repeating myself, for the Doctrine of sub judice to apply the following Principles ought to be present:- (a) There must exist two or more suits filed consecutively; (b) The matter in issue in the suits or proceedings must be directly and substantially the same, the parties in the suits or proceedings must be the same or must be parties under whom they or any of them claim and they must be litigating under the same title, the suits must be pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed. The mere fact that the applicant in the earlier suit is a Branch of the Law Society of Kenya, while the Applicant in the instant suit is the main body does not change the situation. The Branch is suing on behalf of its members. As stated earlier, should the Court determine the earlier suit either way, it will render the issues in the instant suit res judicata. Put differently, the outcome of the earlier suit will apply to the entire membership of the Law Society”.
63. The sub judice rule has the basic purpose and the underlying object of sub judice is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the parties to one litigation so as to avoid the possibility of contradicting decisions by two Courts in respect of the same relief and is aimed to prevent multiplicity of proceedings.
64. Applying the foregoing in the present this Court ask itself are two or more suits filed consecutively, the answer is no as the instant Petition is before this Court while the Application for Review is at the Court of Appeal; Is the matter in issue in the Petition directly and substantially the same as in the Appeal, the answer is no. What is before this Court is a challenge against the 1st Respondent’s action seeking to cancel the Petitioners’ Certificate of Leases and Instruments while the Application at the Court of Appeal is seeking to review the Judgement delivered on 17th March 2023.
65. The parties in the suits or proceedings must be the same or must be parties under whom they or any of them claim and they must be litigating under the same title; I do not have difficulty in reaching a determination that the parties in the Petition and Application for Review are different. Are the suits pending in the same Court or any other Court having jurisdiction in Kenya to grant the relief claimed, the answer is no. The reliefs sought in the Petition before this Court are distinct from the reliefs sought at the Court of Appeal. Further, in the event this Court makes its decision in the instant Petition will such decision operate as res-judicata to the Application for Review at the Court of Appeal, the simple answer is no. Will the decision of the Court of Appeal render the instant Petition res judicata? the answer is no. I say so bearing in mind that the provision of Section 7 of the Civil Procedure Act, Cap. 21 provides: -
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
66. Further, the Supreme Court of Kenya decision in the case of:- “John Maritime Florence Services Limited and Another - Versus - Cabinet Secretary and Transport and Infrastructure 2021 (KESC) 39” where the court held inter-alia:- -
“59. For Res judicata to be invoked in a civil matter the following elements must be demonstrated;
a. There is a former judgment or order which is final;
b. The judgment or order was on merit;
c. The judgment or order was rendered by a Court having jurisdiction over the subject matter and the parties and
d. There must be between the first and second action identical parties, subject matter and cause of action….”
67. As noted in the case of:- “National Institute of Mental Health & Neuro Sciences – Versus - C. Parameshwara, (2005) 2 SCC 256, the sub judice rule like other maxims of law has a salutary purpose. The basic purpose and the underlying object of sub judice is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the parties to one litigation so as to avoid the possibility of contradictory verdicts by two Courts in respect of the same relief and is aimed to prevent multiplicity of proceedings. Is the Controversy at the Court of Appeal similar to the controversy before this Court? The answer is a resounding and straight no as I have indicated in the preceding paragraphs.
68. This Court does not have concurrent jurisdiction to the Court of Appeal. The Court of Appeal is a higher Court as appeals from this Court lies at the Court of Appeal. From the foregoing analysis, therefore, this Court arrives at a definitive finding that the instant Petition is not sub judice to the 3rd Respondent’s application at the Court of Appeal seeking review of the Judgement delivered on 17th March 2023.
ISSUE No. d). Whether the Petition has been pleaded with precision and specificity?
69. Under this sub – heading, the Court will examine whether the Petition meets the standards required a Constitution Petition. To begin with, under the provision of Article 2 (1) & (4) of Constitution of Kenya defines the Constitution as being the Supreme law of the Republic and it bids all persons and all States at all levels. Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency and any act or omission in in contravention of this Constitution is invalid.
70. Additionally, I dare say that a Constitution is a living tissue. Just like all other tissues, it has to be fed and watered. It breathes without oxygen and freshness it will die. I have learnt that these things are not just metaphorical. They are real. As a matter of course, the Constitution of Kenya under Article 259 (1) provides a guide on how it should be interpreted as such:-
a. Promotes its purposes, values and principles;
b. Advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
c. Permits the development of the law; and
d. Contributes to good governance……”
71. This Court must give a liberal interpretation and consideration to any provision of the Constitution and have regard to the language and wording of the Constitution and where there is no ambiguity attempt to depart from the straight texts of the Constitution must be avoided. It must always be interpreted and considered as a whole with all the provisions sustaining and coordinating each other and not destroying the other.
72. Based on the principles set out in the edit of the Court of appeal case of the “Mumo Matemu – Versus – Trusted Society of Human Rights Alliance & Another (2013) eKLR” provided the standards of proof in the Constitutional Petitions as founded in the case of “Anarita Karimi Njeru – Versus - Republic [1980] eKLR 154” where the court is satisfied that the Petitioner’s claim were well pleaded and articulated with absolute particularity. It held:-
“Constitutional violations must be pleaded with a reasonable degree of precision…………”
Further, in the “Thorp – Versus – Holdsworth (1886) 3 Ch. D 637 at 639, Jesse, MR said in the year 1876 and which hold true today:
“The whole object of pleadings is to bring the parties to an issue and the meaning of the rule……was to prevent the issue being enlarged which would prevent either party from knowing when the cause came on for trial what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues and thereby diminish expense and delay especially as regards the amount of testimony required on either side at the hearing.”
73. The provision of Article 23 (3) of the Constitution empowers a court to grant appropriate reliefs in any proceedings brought under Article 22 where there has been violation or threat of a violation of a fundamental right or freedom. The relief may include a conservatory order. The above Principle was affirmed by the Court of Appeal in the case of “Mumo Matemo (Supra)”. The Court at Paragraph 44 of the Judgment stated as follows: -
“(44) We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (supra). In view of this, we find that the Petition before the High Court did not meet the threshold established in that case. At the very least, the 1st Respondent should have seen the need to amend the Petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the Petition fell short of the very substantive test to which the High Court made reference to. In view of the substantive nature of these short comings, it was not enough for the superior Court below to lament that the Petition before it was not the “epitome of precise, comprehensive or elegant drafting, without remedy by the 1st Respondent”
10. Further at Paragraph 87(3) in the same Judgment the Court on its findings stated as follows: -
“It is our finding that the Petition before the High Court was not pleaded with precision as required in Constitutional Petitions. Having reviewed the Petition and supporting affidavit we have concluded, that they did not provide adequate particulars of the claims relating to the alleged violations of the Constitution of Kenya and the Ethics and Anti-corruption Commission Act, 2011, accordingly the Petition did not meet the standard enunciated in the Anarita Karimi Njeru case.”
74. In the instant Petition, my mind is clear the Petitioners have pleaded in a specific and precise manner the Provisions of the Constitution alleged to have been violated specifically by the 1st Respondent and the manner the said Provisions have been alleged to have been violated. The Petitioners alleges violation of their right to property under Article 40, violation of a right to be heard and violation of the right to fair hearing and fair administrative action against Articles 47 and 50 and Article 50 (1) of the Constitution as such the Petition has met the set threshold.
ISSUE No. e). Whether the Petition by the 1st, 2nd & 3rd Petitioners has merits?
75. Under this sub – title, having arrived the foregoing findings, the next step is for this Court analyze whether the Petition has merits. In this respect the Court will address three issues: -
76. Firstly, whether the Petitioners’ right to Fair Administrative Action vas violated? The provision of Article 2 (1) of the Constitution on Supremacy of the Constitution provides that the Constitution is the Supreme Law of the Republic and binds all persons and all State organs at both levels of Government. All the persons and actions taken bows to the Constitution. Article 47(1) and (2) of the Constitution provides that, 47(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. Article 50 on the other hand entitles every person to a fair hearing.
77. Section 4 of the Fair Administrative Action Act is to the effect that administrative action to be taken expeditiously, efficiently, lawfully etc. It holds:-
(1) Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) Every person has the right to be given written reasons for any administrative action that is taken against him.
(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision–
(a) prior and adequate notice of the nature and reasons for the proposed administrative action;
(b) an opportunity to be heard and to make representations in that regard;
(c) notice of a right to a review or internal appeal against an administrative decision, where applicable;
(d) a statement of reasons pursuant to Section 6;
(e) notice of the right to legal representation, where applicable;
(f) notice of the right to cross-examine, where applicable; or
(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.
(4) The administrator shall accord the person against whom administrative action is taken an opportunity to–
(a) attend proceedings, in person or in the company of an expert of his choice;
(b) be heard;
(c) cross-examine persons who give adverse evidence against him; and
(d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.
(5) Nothing in this Section, shall have the effect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi-judicial proceedings.
(6) Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure.
78. The genesis of the instant Petition is found in the 1st Respondent’s letter dated 21st November 2024, this day was on a Thursday. The 1st Respondent wrote the letter to Ann Vaughan who according to the 3rd Petitioner passed away before 21st November 2024. Hellen Kay Hartley in a Supporting Affidavit sworn on 16th January 2025 to have annexed a copy of the Certificate of Death. What is on record in not a Certificate of Death but a Grant and Certificate of Confirmation of Grant issued in the civil case of: “Mombasa High Court Succession Cause No. E081 of 2021” relating the estate of Vaughan Anne. This Court has no difficulty in arriving at a determination that it was legally untenable for the 1st Respondent to purport to write to a Deceased person. The said letter is also addressed to Snapdragon Enterprises Limited which is the 2nd Petitioner and Kama Kawaida Property Limited which is the 1st Petitioner.
79. This Court has not been told when the Petitioners were served with the said letter. Notably, the 1st Respondent in the said letter issued notice to surrender for cancellation requesting the Petitioners to surrender the Lease Instruments and Lease Certificates in their possession for cancellation. The 1st Respondent informed the Petitioners that the same will be degazetted within seven (7) days from 21st November 2024.
80. The Petitioners have a right to be heard more so considering the adverse action by the 1st Respondent. The Petitioners had the right to be given written reasons for any administrative action that is taken against them where such administrative action was adversely affecting the rights of the Petitioners in respect of the suit property fundamental. Further, a notice of seven (7) days from the date of the letter is a such notice considering the magnitude of the 1st Respondent’s action. This Court finds that there was no adequate notice of the nature and reasons for the proposed administrative action by the 1st Respondent. Tier two is that the 1st Respondent failed to give the Petitioners an opportunity to be heard and to make representations in that regard with a view of hearing their side of the story. No person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi partem rule) is a fundamental Principle of Justice. It is the Court’s finding that this violated the Petitioners right to fair administrative action.
81. Secondly, whether the Petitioners’ rights to the Suit Property were violated? The Petitioners’ grievance is that the 1st Respondent’s notice to surrender for cancellation dated 21st November 2024 grossly violates the Provisions of Article 40 of the Constitution. That Provision protects the right to own property and goes on to add that Parliament shall not enact any law which permits the state or any person to arbitrarily deprive a person of his property. Article 40 (6) provides that the rights under the Article do not extend to any property that has been found to have been unlawfully acquired.
82. The Court takes note of the existence of “Mombasa ELC No. 345 of 2017 formerly Nairobi High Court Civil Case No. 320 of 2012”. The Plaintiffs in the said case were James Archer and Joana Archer and the Defendants were Inger Christine Archer, Arnellisa Archer – Clark, Hellen Kay Hertley, Peter Walker and John Christine Clark. There is a letter dated 27th June 2012 written by Azania Consultants to the Deputy Registrar requesting that a consent be recorded in terms of the said letter. Justice C.K Yano by a Judgment delivered on 26th November 2019 dismissed the Originating Summons with costs. The Plaintiffs being aggrieved preferred an Appeal to the Court of Appeal.
83. The Plaintiffs filed an application dated 6th November 2019 seeking to restrain the Defendants from selling, charging or alienating property title numbers Kwale/ Diani Beach Block 806, 807 and 808 pending hearing and determination of the Appeal. Justice Yano dismissed the Application on 9th March 2021. Further, the Plaintiffs who are the Appellants at the court of appeal filed application seeking to injunction restraining the Respondents who were the Defendants from disposing, assigning, selling, transferring leasing or dealing with properties title numbers Kwale/ Diani/ Beach Block 1745, 1746, 1747, 1748, 1759, 1750, 1751 and 1752 pending hearing and determination of the application and the intended appeal. The Court of Appeal noted that the Respondents that the suit properties have already been transferred to third parties who were not part of the suit. The Court of Appeal in a Ruling delivered on 20th January 2021 dismissed the Application with costs to the Respondents. There is also a Ruling delivered by the Court of Appeal on 4th March 2022 which struck out the Appellants Application for being “res judicata”.
84. The Appellants also filed an application seeking to adduce additional evidence. The Court of Appeal in a Ruling delivered on 21st January 2022 allowed the application for the Appellants to adduce and file additional evidence limited to absolute card and Leasehold for Kwale/ Diani Beach Block 1752, 1751, 1750, 1749, 1748, 1747, 1746 and 1745. The Court of Appeal finally delivered its Judgement on 17th March 2023 setting aside the Judgement of the Environment and Land Court (Justice Yano.) I will reproduce the Judgement as hereunder:-
“61.What then are the remedies, if any, available to the Appellants, which is the last issue before us for determination. The Appellant’s Counsel submitted that the Appellants contributed approximately 25% each of the Purchase Price and maintenance of the suit property, and while applying the Principles set out by the Supreme Court of the United Kingdom in Jones – Versus - Kernott [2011] UKSC 53, stated that the starting point is that in 1966, all four siblings had a 25% share each, and that in 2022, after the dispositions carried out by the Respondents, the plots that are remaining fall under the 50% share that the Appellants were entitled to in equity in 1966. Therefore, that it is only fair, just and equitable that they be awarded the remaining plot being Kwale/Diani Beach Block 1752 measuring 6.5058 acres. The Counsel therefore sought orders that the Judgment delivered by the Trial Court on 26th November 2019 be set aside, that Judgment be entered in favour of the Appellants on the terms of their Originating Summons dated 5th June 2012, but amended to state that Title Number Kwale/Diani Beach Block/1752 be registered in the names of the two Appellants as prayed in the Appellants' Supplementary Memorandum of Appeal, and for costs of the trial and this appeal.
62.The Respondents’ Counsel in response submitted that the Appeal has been irredeemably overtaken by events and this Court should not act in vain, and referred us to the record of this Court in Mombasa Civil Application No. E078 of 2021- James Archer and Joanna Trent vs Inger Christine Archer, Annelise Archer-Clark and Helen Kay Hartley, which was application by the Appellants for an injunction pending appeal and the Replying Affidavit sworn therein by Helen Kay Hartley on 8th November 2021 and annexures thereto that demonstrate that all of the suit properties have been dealt with by way of transfers to third parties who are not before this Court, and who shall definitely be affected by any orders which may be issued in this Appeal in respect of the suit properties.
63.The prevailing position in respect of the suit properties, which now comprise of the eight (8) subdivision plots known as Kwale/Diani Beach Blocks 1745, 1746, 1747, 1748, 1749, 1750, 1751 and 1752, was stated by the Respondents to be as follows: -
a. The plots known as Kwale/Diani Beach Blocks 1745 and 1747 were vide a Transfer Instrument dated 5.03.2019 which was registered on 2.12.2019 transferred for valuable consideration to one Anne Vaughan who is not a party to this appeal and a Certificate of Lease issued.
b. The plots known as Kwale/Diani Beach Blocks 1746, 1748, 1749, 1750 and 1751 were vide a Transfer Instrument dated 5.05.2021 which was registered on 19.05.2021 also transferred for valuable consideration to a company known as Snapdragon Enterprises Limited and a Certificate of Lease issued to the said company which is also not a party to this Appeal.
c. The plot known as Kwale/Diani Beach Block/1752 was also vide a Transfer Instrument dated 5.05.2021 which was registered on 19.05.2021 also transferred for valuable consideration to a company known as Kama Kawaida Property Limited and a Certificate of Lease issued to the said company which is also not a party to this Appeal.
64. It is evident that the Respondents have disposed of the suit properties, and thereby dissipated the Appellants’ beneficial interests in the suit property. In our view this action by the Respondents were not only unconscionable but also resulted in unjust enrichment of the Respondents, who we have found were aware and had also intended that the suit property was to be held in trust. In this regard, even if the suit property was transmitted by will to the Respondents, it was subject to the trust and Christopher John Archer could only bequeath his share of the beneficial interest in the suit properties. In essence the Respondents were firstly, constructive trustees arising from their knowledge and common intention that the suit property was held in trust by their father for his siblings; and secondly, being the successor in titles of the suit properties, held the Appellants’ share of the beneficial interest in trust.
65. The Respondents therefore had a duty of care and to account with respect to the Appellants’ share of the beneficial interest in the suit properties. It is notable in this respect that the initial intention and pattern of contributions were premised on each sibling having an equal share and responsibility for the suit properties. However, in the course of the dealings between the siblings, Robert D. Archer indicated by an affidavit he swore on 1st November 2007 that while he was of the view that the suit properties were held in trust for the siblings, he had no interest in seeking redress.
66.We are of the view that whereas we may not be able to restore to the Appellants the suit properties which they have been wrongly deprived of, the Appellants are not without remedy, as this is a Court of justice and equity, which is expressly mandated under Article 159(2) of the Constitution and Section 3B of the Appellate Jurisdiction Act to dispense substantive and expeditious justice. Under Rule 33 of the Court of Appeal Rules of 2022 (then Rule 30 of the 2010 Rules,) we also have the power, upon hearing an appeal, to confirm, reverse or vary the decision of the Trial Court, to remit the proceedings to the Trial Court with such directions as may be appropriate, or to order a new trial, and to make any necessary incidental or consequential orders, including orders as to costs.
67. We accordingly find merit in this Appeal, and set aside the Judgment of the Environment and Land Court at Mombasa (Yano J.) delivered in Mombasa ELC Suit 345 of 2017 on 26th November 2019 in its entirety. We in addition grant the following orders: -
I. A declaration that the 1st Appellant, 2nd Appellant and one Robert D. Archer held a beneficial interest in the properties previously known as Kwale/Diani Beach Blocks 806, 807 and 808 and later sub-divided into the eight (8) parcels of land known as Kwale/Diani Beach Blocks 1745, 1746, 1747, 1748, 1749, 1750, 1751 and 1752 , that were registered in the names of Inger Christine Archer, Annalise Archer Clark and Hellen Kay Hartley, the 1st, 2nd and 3rd Respondents herein.
II.A declaration that the properties previously known as Kwale/Diani Beach Blocks 806, 807 and 808 and later sub-divided into the eight (8) parcels of land known as Kwale/Diani Beach Blocks 1745, 1746, 1747, 1748, 1749, 1750, 1751 and 1752, were held in trust by Inger Christine Archer, Annalise Archer Clark and Hellen Kay Hartley, the 1st, 2nd and 3rd Respondents herein, as constructive trustees for the 1st Appellant, 2nd Appellant and one Robert D. Archer.
III. The parties’ respective shares of the beneficial interest in the properties previously known as Kwale/Diani Beach Blocks 806, 807 and 808, and later sub-divided into the eight (8) parcels of land known as Kwale/Diani Beach Blocks 1745, 1746, 1747, 1748, 1749, 1750, 1751 and 1752 that were registered in the names of Inger Christine Archer, Annalise Archer Clark and Hellen Kay Hartley, the 1st, 2nd and 3rd Respondents herein are hereby apportioned and quantified as follows:
a. The 1st, 2nd and 3rd Respondents’ joint share was 25%
b. The 1st Appellant’s share was 25%,
c. The 2nd Appellant’s share was 25%,
d. Robert D. Archer’s share was 25%.
IV. This matter shall be remitted back to the Environment and Land Court before a Judge other than Yano J., for appropriate directions and to take evidence on the consequential issue arising from this judgment, namely the furnishing of accounts by the 1st, 2nd and 3rd Respondents on the sale and transfer of the properties previously known as Kwale/Diani Beach Blocks 806, 807 and 808 and later sub- divided into the eight (8) parcels of land known as Kwale/Diani Beach Blocks 1745, 1746, 1747, 1748, 1749, 1750, 1751 and 1752; and to subsequently enter judgment on the quantum due to the 1st and 2nd Appellants and payable by the 1st, 2nd and 3rd Respondents from the proceeds of sale of the said properties, in line with parties’ respective shares as found and ordered by this Court in Order III hereinabove.
V. The 1st and 2nd Appellants shall have the costs of the suit of the trial in the Environment and Land Court and of this Appeal.
85. From the foregoing, the Court of Appeal noted that Kwale/Diani Beach Blocks 806, 807 and 808 had been dealt with and the prevailing position in respect and now comprise of the eight (8) sub - division plots known as Kwale/Diani Beach Blocks 1745, 1746, 1747, 1748, 1749, 1750, 1751 and 1752. The Court of Appeal took note that the plots known as Kwale/Diani Beach Blocks 1745 and 1747 were vide a Transfer Instrument dated 5.03.2019 which was registered on 2.12.2019 transferred for valuable consideration to one Anne Vaughan who is represented by the 3rd Respondent and who is not a party to the Appeal and a Certificate of Lease issued. The plots known as Kwale/Diani Beach Blocks 1746, 1748, 1749, 1750 and 1751 were vide a Transfer Instrument dated 5.05.2021 which was registered on 19.05.2021 also transferred for valuable consideration to a company known as Snapdragon Enterprises Limited, the 2nd Petitioner and a Certificate of Lease issued to the said company which is also not a party to the Appeal. The plot known as Kwale/Diani Beach Block/1752 was also vide a Transfer Instrument dated 5.05.2021 which was registered on 19.05.2021 also transferred for valuable consideration to a company known as Kama Kawaida Property Limited, the 3rd Petitioner and a Certificate of Lease issued to the said company which is also not a party to the Appeal.
86. The Court of Appeal condemned the Respondents for having disposed of the suit properties, and thereby dissipated the Appellants’ 3rd Respondent beneficial interests in the suit property. The Court of Appeal’s view is that those actions by the Respondents were not only unconscionable but also resulted in unjust enrichment of the Respondents, yet they were aware that they were holding the suit property held in trust. In this regard, even if the suit property was transmitted by will to the Respondents, it was subject to trust.
87. At Paragraph 66 of the Judgement the Court of Appeal living to the reality of the situation prevailing stated that whereas the Court may not be able to restore to the Appellants/ the 3rd Respondent suit properties which they have been wrongly deprived of, the Appellants are not without remedy. The Court being a Court of justice and equity made appropriate orders, the said orders are specifically order iii and iv thus: -
III. The parties’ respective shares of the beneficial interest in the properties previously known as Kwale/Diani Beach Blocks 806, 807 and 808, and later sub-divided into the eight (8) parcels of land known as Kwale/Diani Beach Blocks 1745, 1746, 1747, 1748, 1749, 1750, 1751 and 1752 that were registered in the names of Inger Christine Archer, Annalise Archer Clark and Hellen Kay Hartley, the 1st, 2nd and 3rd Respondents herein are hereby apportioned and quantified as follows: -
a. The 1st, 2nd and 3rd Respondents’ joint share was 25%
b. The 1st Appellant’s share was 25%,
c. The 2nd Appellant’s share was 25%,
d. Robert D. Archer’s share was 25%.
IV. This matter shall be remitted back to the Environment and Land Court before a Judge other than Yano J., for appropriate directions and to take evidence on the consequential issue arising from this judgment, namely the furnishing of accounts by the 1st, 2nd and 3rd Respondents on the sale and transfer of the properties previously known as Kwale/Diani Beach Blocks 806, 807 and 808 and later sub- divided into the eight (8) parcels of land known as Kwale/Diani Beach Blocks 1745, 1746, 1747, 1748, 1749, 1750, 1751 and 1752; and to subsequently enter judgment on the quantum due to the 1st and 2nd Appellants and payable by the 1st, 2nd and 3rd Respondents from the proceeds of sale of the said properties, in line with parties’ respective shares as found and ordered by this Court in Order III hereinabove.
88. Coming back to the matter at hand, the 1st Respondent sought to cancel the Petitioners Lease Instruments and Certificates on the basis that it originated from parcels numbers 806, 807 and 808 respectively which titles have never been closed. The Environment and Land Court, the Court of Appeal and even the Appellants in the appeal acknowledged that the said parcels no longer exists as it has been transferred to third parties. This is the reason the Appellants in fact filed an application to adduce additional evidence which was allowed. The final Judgement of the Court of Appeal acknowledged the existence of the suit properties which are in the names of the Petitioners. It is shocking that the 1st Respondent who is the custodian of land records can come up with such narrative intended to revert to the mother titles and defeat the interests of the Petitioners.
89. The provision of Section 26 of the Land Registration Act, No. 3 of 2012 which provides as follows: -
26. (1) The Certificate of Title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all Courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the Certificate of Title has been acquired illegally, unprocedurally or through a corrupt scheme.
(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.
90. The Court of Appeal whose decision is binding on this Court has already rendered itself on the titles properties previously known as Kwale/Diani Beach Blocks 806, 807 and 808, and later sub-divided into the eight (8) parcels of land known as Kwale/Diani Beach Blocks 1745, 1746, 1747, 1748, 1749, 1750, 1751 and 1752 and the way out for the Appellants came the 3rd Respondents. There was nothing preventing the Court of Appeal from cancelling the said titles if it had intended to. From the above I arrive at a finding that the actions of the 1st Respondent violate the Petitioners’ rights to property.
91. Thirdly, whether the Land Registrar has powers to cancel certificate of title/ lease. This pertinent issue, which forms the pith and substance of the filed instant Petition, is discussed under various provisions of the law mainly Section 79 ( 1 ) and ( 2 ) and Section 80 ( 1 ( ) & ( 2 ) of the Land Registration Act, No. 3 of 2012. Equally, the High Court in Kenya has expansively deliberated on the issue and there exists numerous decision to this effect.
Part VIII – RECTIFICATION AND INDEMNITY
79. Rectification by Registrar
(1) The Registrar may rectify the register or any instrument presented for registration in the following cases—
(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;
(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; or
(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.
(2) 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; or
(b) it would for any other reason be unjust for the alteration not to be made.
Provided that a written notice of ninety (90) 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) The Cabinet Secretary may by regulations prescribe the guidelines that the Registrar shall follow before rectifying or directing rectification under this section and without prejudice to the generality of the foregoing, the regulations may provide for—
(a) the process of investigation including notification of affected parties;
(b) hearing of the matters raised; and
(c) the criteria to be followed in coming up with the decision.
80. Rectification by Order of Court
(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.
92. This is the legal position. On 29th July, 2025 when the Counsel were accorded the opportunity to orally highlight their submissions, I particularly really appreciated the candid presentation and submissions taken by the Learned Counsel, Mr. Wagah, for the Land Registrar and Attorney General, the 1st & 2nd Respondents herein on this legal subject matter. He stated it as it should have been in black and white – that the Land Registrar has no powers to “cancel” a registered title deed issued to a legal proprietor. As indicated, there are numerous authorities on the question whether the Land Registrar has powers to cancel/ revoke a title. Hence, there will be no need to re – invent the wheel herein. The Court will only cite a few. In the case of: “Republic - Versus - Chief Land Registrar & Another Ex - Parte Yosabia Kerubo Manyara (2018) eKLR”, the Court pronounced itself in the following words:-
“It is evident from the Provisions of Section 79 that the Land Registrar’s powers of rectification are limited to rectifying errors, mistakes or omissions that do not materially affect the interests of any proprietor. Cancellation of a title quite clearly would materially affect the interests of the registered proprietor. In my view it is only the Court that under Section 80 (1) of the Land Registration Act, 2012 that has the power to direct the cancellation of a registration …I therefore hold that the Land Registrar lacked the jurisdiction to cancel the Applicant’s title and in doing so he acted ultra vires and his actions are amenable to an Order of Certiorari.
93. Like wise, at a Court in Kisumu “Misc. No. 80 of 2008 – Republic – Versus – Kisumu District Lands Officer & Another, (2010) eKLR”, where the Court held:-
“It is clear that it is only the Court that can cancel or amend if where the Court is of the view that registration has been obtained, made or omitted through fraud or mistake and only where it is not a first registration”
94. Additionally, the Court of Appeal in the case of: “Super Nova Properties Limited & another - Versus -District Land Registrar Mombasa & 2 others; KACC & 2 Others (Interested Parties) (2018) KECA 17 (KLR) (19th April 2018) (Judgement), rendered itself on the matter agreeing with the Trial Court that,
“The Learned Judge held and correctly so, that the Registrar of Titles had no power to revoke a title.”
95. Legally speaking, and based on the principles of “Stare Decisis” the decision of the Court of Appeal is binding on this Court. I also agree with it fully as the correct interpretation of the Provisions of Sections 79 and 80 of the Land Registration Act. The only institution with the mandate to cancel a title to land on the basis of fraud or illegality is a Court of Law. Therefore, in cancelling the title deed of the suit property, the 1st Respondent acted in excess of his powers and therefore the decision of the 1st Respondent was ultra vires in revoking the said title deeds without a valid Court Order.
96. In the case of:- “Republic - Versus - Land Registrar Taita Taveta District & Another (2015) eKLR”, the court held:
“It is now accepted that the Registrar had no jurisdiction to revoke titles to land under the Registered Land Act or the Registration of Titles Act. In this regard, I reiterate my holding in Republic versus the Registrar of Titles, Mombasa & 2 Ors Ex Parte Emfil Ltd., [2012] eKLR which, a s shown below, the Court of Appeal approved-
“For these reasons, I find that the Government cannot revoke title to land even “for public need or interest” or for alleged illegality. The Government is obliged to move the Court for appropriate orders to revoke, cancel or rectify title in such circumstances. A unilateral decision published in the Gazette will not do. The considerations of public interest such as presented by the Respondent in these proceedings may only be used by the Court in an appropriate case in making an order for cancellation of title or in authorizing, subject to due compensation, the compulsory acquisition or take-over of the private property.”
97. It is not in doubt that the 1st Respondent does not have jurisdiction to cancel and revoke the Petitioners Lease Instruments and Lease Certificates and he acted ultra vires and did not give the Petitioners an opportunity to be heard, which action is against the rule of natural justice. Thus, the Applicant is entitled to the remedy.
98. As per Article 19 (1) of the Constitution, the Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. Article 22(1) of the Constitution allows every person 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. Article 23 of the Constitution grants the Courts Authority to uphold and enforce the Bill of Rights. In any proceedings brought under Article 22, a Court may grant appropriate relief, 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; and
(f) an Order of Judicial Review.
99. Land in this country is extremely sensitive and emotive. Its ownership and land rights are both historical and emotive subjects in this country. A right to hold property is a constitutional right as well as a human right and no person can be deprived of his property except in accordance with the provisions of the Constitution or any other Statute or written law. The condition precedent to taking away anyone’s property is that the authority must ensure compliance with the Constitution and statutory provisions.
100. During the hearing of the Petition, this Court was made aware that the 1st Respondent had proceeded to issue Gazette Notice No. 1108 dated 31st January 2025. The hands of this Court are not tied and can make orders so as to meet the ends of justice. The Supreme Court had occasion to consider the Scope of Article 23(3) of the Constitution, as read with Article 165(3)(d) of the Constitution in the case of:- “Communications Commission of Kenya & 5 others - Versus - Royal Media Services Limited & 5 others; Petition No 14, 14A, 14B and 14C of 2014 (Consolidated); The Court stated:-
[359] “… a close examination of these Provisions (Article 23(3) and 165(3)(d) of the Constitution) shows that the Constitution requires the Court to go even further than the US Supreme Court did in the Marbury, and that Article 23(3) grants the High Court powers to grant appropriate relief “including” meaning that this is not an exhaustive list.”
ISSUE No. f). Who will bear the costs of the Preliminary Objection and the Petition
101. It is now well established that the issue of Costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of a legal action or proceedings in any litigation. According to the Black Law Dictionary, “Cost” is defined to mean, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.
102. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. By the events, it means the results or outcome of any legal action or proceedings thereafter. The case before Court being a Constitutional Petition, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms Practice and Procedure Rules) 2013 (The Mutunga Rule) provides:
“(1) The award of costs is at the discretion of the Court.
(2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms.”
103. The general rule is that costs follow the event. However, Courts have discretion to award or deny costs. In the Supreme Court of Kenya case of: “Jasbir Singh Rai & 3 others versus Tarlochan Singh Rai & 4 others [2014] eKLR, the Court held:
"Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the applicant."
104. Justice Kuloba “in [Judicial Hints on Civil Procedure, at p 94] states:
"[T]he object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure…Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.”
105. It is also my view that the Petitioners have a duty to discharge the burden of proof of the allegations raised in the Petition. In the case of “Matendechere - Versus - Sunstar Hotel Nairobi (2021) KEHC 192 (KLR)” the court held as follows:
“32. Reinforcing that the legal burden of proof in Constitutional Petition is on the Petitioners, the Supreme Court of Kenya in Communications Commission of Kenya & 5 Others – Versus - Royal Media Services Ltd & 5 Others eKLR (2014) stated as follows:-
“Although Article 22 (1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru – Versus - Republic (1979) KLR 154; the necessity of a link between the aggrieved party the provisions of the Constitution alleged to have been contravened , and the manifestation of contravention or infringement. Such principle plays a positive role as a foundation of conviction and good faith, in engaging the Constitution at process of dispute settlement.”
106. In the instant Petition, in as much as the Preliminary Objection raised by the 3rd Respondent has been unsuccessful while the 1st, 2nd & 3rd Petitioners have graphically established how their rights have been infringed by the impugned notice issued by the 1st Respondent, it is just, reasonable and fair that each party bears their costs.
XI. Conclusion and Disposition
107. Consequently, having caused such an in-depth analysis to the framed issues herein I am satisfied that the Petitioners herein have proved their case, the Petitioners have pointed out the manner in which their rights have been infringed by the impugned notice issued by the 1st Respondent. For avoidance of doubt, the Honourable Court specifically issues the following Orders:-
a.THAT the 3rd Respondent’s Notice of Preliminary Objection dated 24th March 2025 be is and hereby dismissed with no Orders as to costs.
b.THAT Judgement be and is hereby entered in favour of the Petitioner vide the filed Constitutional Petition dated 16th January 2025.
c.THAT a Declaration that the Notice to Surrender for Cancellation dated 21st November 2024 issued to the Petitioners by the 1st Respondent demanding that the Petitioners surrender for cancellation their respective registered Lease Instruments together with their respective corresponding Certificates of Leases in Kwale/ Diani Beach Blocks 1745, 1746, 1747, 1748 , 1749, 1750, 1751 and 1752 and degazetting the Lease Instruments together with the respective corresponding Certificates of Lease amounts to deprivation of the Petitioners respective registered Leasehold Interests in the suit properties without regard to due process of the law and consequently gross violates the Petitioners right to property as enshrined under Article 40 of the Constitution.
d.THAT a Declaration that seven (7) days’ notice given to the Petitioners by the 1st Respondent in his impugned letter dated 21st November 2024 by which required the Petitioners to surrender their respective registered Lease Instruments and their respective corresponding Certificates for the suit properties amounts to a gross violation of the Petitioners rights to be heard and / or afforded a reasonable opportunity to be heard prior to an adverse decision being taken and executed against them grossly violates the Provisions of Articles 47 and 50 (1) of the Constitution.
e.THAT a Declaration that the decision of the 1st Respondent Land Registrar, Kwale to degazette the Petitioners’ respective registered Lease Instruments and respective corresponding Certificates of Lease for the suit properties upon the expiry of seven (7) days’ notice with effect from 21st November 2024 amounts to a gross violation of the Petitioners’ right to be heard and/or to be afforded a reasonable opportunity to be heard prior to an adverse decision is taken and executed against them and consequently grossly violates the Provisions of Articles 47 and 50 (1) of the Constitution of Kenya
f.THAT a Declaration that the 1st Respondent, in the absence of an Order issued by a Court of competent jurisdiction cancelling or directing the cancellation of the Petitioners’ title and interest in the suit properties, had no power and has no power, constitutional, statutory, administrative or otherwise, to demand that the Petitioners surrender their respective registered Lease Instruments together with the respective corresponding Certificates of Lease for the suit properties to his office for cancellation.
g. THAT a Declaration that the 1st Respondent, in the absence of an Order issued by a Court of competent jurisdiction cancelling or directing the cancellation of the Petitioners title and interest in the suit properties, had no power and has no power, constitutional, statutory, administrative or otherwise, to degazette or cause to be degazetted the Petitioners’ respective Lease Instruments and/or their corresponding respective Certificates of Lease for the suit properties.
h.THAT an Order of Certiorari quashing the notice to surrender for cancellation dated 21st November 2024 issued to the Petitioners by the 1st Respondent be and is hereby issued.
i.THAT a Declaration that any other or further action taken by the 1st Respondent which is adverse to the Petitioners’ respective registered Leasehold Interests in the suit properties taken by the 1st Respondent on the basis of the purported Notice to Surrender for Cancellation dated 21st November 2024 and/or on any other subsequent basis including any gazette notice published by, procured by or on behalf of the 1st Respondent purporting to degazette the Petitioner’s respective Lease Instruments and corresponding Certificates of Lease is null and void ab initio.
j. THAT an Order is and hereby issued quashing Gazette Notice No.1108 dated 31st January 2025 published by the 1st Respondent degazetting, deregistering or otherwise cancelling the Petitioners’ respective Lease Instruments and/or the corresponding Certificates of Lease for the Lease properties and/or any restrictions or caveats or any other impediments so far registered by the 1st Respondent in respect of the suit properties
k. THAT an Order of Mandamus to compel the 1st Respondent to forthwith and in any event within Sixty (60) days of the making of this Order, to publish a Gazette Notice of similar size and prominence in the Kenya Gazette at own cost cancelling and/or vacating any previous gazette notice published or degazetting, deregistering and/or otherwise cancelling the Petitioners’ respective Lease Instruments and/or the corresponding Certificates of Lease for the suit properties.
l.THAT an Order directing the 1st Respondent to restore the documents and the register to reflect the Petitioners as the owners of their respective registered lease instruments together with their respective corresponding Certificates of Leases in respect of Kwale/ Diani Beach Blocks 1745, 1746, 1747, 1748, 1749, 1750, 1751 and 1752.
m. THAT there shall be no Orders as to costs.
IT IS ORDERED ACCORDINGLY.
JUDGEMENT DELIVERED THROUGH THE MICRO–SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS………11TH ………….DAY OF ………DECEMBER………..2025
Judgement delivered in the presence of:
a) Mr. Daniel Disii, the Court Assistant.
b) Mr. Muthama Adam Advocate for the 1st Petitioner.
c) Mr. Gitau Advocate holding brief for Mr. Mureithi Advocate for the 2nd & 3rd Petitioners.
d) Mr. Wagah Advocate for the 1st Respondent.
e) Mr. Harit Sheth Advocate & Mr. Kinyua Kamundi Advocate for the 3rd Respondent.