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Supreme CourtPartially AllowedPetition 32 (E036), 35 (E038) & 36 (E039) of 2022 (Consolidated)

Fanikiwa Limited & 3 others v Sirikwa Squatters Group & 17 others

Supreme Court of Kenya
15 December 2023
Martha Karambu KoomeMartha K KoomePhilomena Mbete MwiluPhilomena M MwiluMohammed Khadhar IbrahimMohamed K IbrahimSmokin Charles WanjalaSmokin C WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaIsaac LenaolaWilliam OukoWilliam Ouko
17,551 words in judgment
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·~70 min to read original · ~4 min brief

The bottom line

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Supreme Court: President cannot allocate private land; illegal promises create no rights.

What this practically means

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The Supreme Court ruled that a former President's promise to allocate private land to squatters was illegal and created no enforceable rights. The land was already owned by a company, and the President had no authority over private property. The court also found that a surrender of land titles was for converting leasehold to freehold, not for settling squatters. Fraud allegations must be clearly proven with specific evidence.

Executive summary

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This consolidated appeal arose from a dispute over ownership of several parcels of land in the former Uasin Gishu District. The land was originally leased to Plateau Wattle Company Ltd and later transferred to East Africa Tanning Extract Company, which eventually became Lonrho Agribusiness (EA) Ltd. In 2000, Lonrho Agribusiness surrendered the leasehold titles to the government. The central dispute was whether this surrender was for conversion of the titles from leasehold under the Registration of Titles Act to freehold under the Registered Land Act, as the appellants contended, or for settlement of members of Sirikwa Squatters Group, as Sirikwa claimed. The Environment and Land Court found in favour of Sirikwa, holding that its members had a legitimate expectation to be allocated the land, and cancelled all titles emanating from the suit parcels. The Court of Appeal varied this judgment, upholding the titles of innocent purchasers for value and financial institutions but cancelling the titles of Fanikiwa Limited and Mark Too. The Supreme Court allowed the appeal, setting aside the judgments of both lower courts. The Court held that Sirikwa did not have a legitimate expectation because the former President had no authority to allocate private land, and the suit parcels were private property at the time of the alleged promise. The Court further found that the surrender was for conversion of titles, not for settlement, based on the documentary evidence. The Court also held that the appellants' right to a fair hearing was violated because the matter was determined on affidavit evidence alone without viva voce evidence, and the Court of Appeal had found Mark Too guilty of fraud without proper proof. The Court permanently restrained Sirikwa from interfering with Fanikiwa's possession of its properties and declared that the lower courts' findings violated Lonrho Agribusiness's right to property. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the consolidated appeal meets the constitutional threshold under article 163(4)(a) of the Constitution.
  2. 2.Whether the appellants' right to fair hearing under article 50(1) of the Constitution was violated by the appellate court's cancellation of their titles.
  3. 3.Whether the proceedings ought to have been through viva voce evidence at the trial court.
  4. 4.Whether Sirikwa had a legitimate expectation to acquire and be allocated the suit parcels.
  5. 5.Whether Sirikwa has a right to the suit parcels on account of its members being squatters on the suit parcels.
  6. 6.What was the intent for the surrender of the titles to the suit parcels?
  7. 7.Costs and available relief(s).

Key legal issues

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01

Whether the consolidated appeal met the constitutional threshold under Article 163(4)(a) of the Constitution.

Holding

The Supreme Court had jurisdiction because the appeal involved the interpretation and application of Articles 40, 47, and 50 of the Constitution, which were central to the decisions of the courts below.

Reasoning

The court noted that Sirikwa's petition was a constitutional petition invoking Articles 19, 20, 21, 22, 23, 35, 40, 47, and 165. The trial judge interpreted and applied Article 40, and the Court of Appeal considered Articles 47, 50, and 40(6). The appellants sought determination on whether their rights under Articles 25(c), 40, 47, and 50 were violated. The court found that these constitutional issues were integrally linked to the cause and had been determined by the superior courts below, bringing the appeal within the remit of Article 163(4)(a).

p. 24
02

Whether Sirikwa had a legitimate expectation to acquire and be allocated the suit parcels.

Holding

Sirikwa did not have a legitimate expectation because the promise by the former President was unlawful and incompetent, as the suit parcels were private land at the time and the President had no authority to allocate private land.

Reasoning

The court applied the principles from Communications Commission of Kenya v Royal Media Services, requiring an express, clear, and unambiguous promise by a competent public authority, and that the expectation must be lawful. The suit parcels were registered as private property in the name of Lonrho Agribusiness in 1998 when the President endorsed the application. Section 3 of the Government Lands Act restricted the President's power to 'unalienated government land'. The court held that the President had no legal capacity to allocate private land, and the Director of Land Adjudication also lacked the mandate. Therefore, the representation was illegal and could not give rise to a legitimate expectation.

p. 31
03

What was the intent for the surrender of the titles to the suit parcels?

Holding

The intent of the surrender was to convert the leasehold titles under the Registration of Titles Act to freehold titles under the Registered Land Act, not for settlement of Sirikwa's members.

Reasoning

The court relied on section 97(1) of the Evidence Act, which requires that the terms of a disposition of property be proved by the document itself. The court examined Presentation 174 registered on November 2, 2000, which stated: 'Surrender to the Government of the Republic of Kenya in issuance of freehold title under RLA (Chapter 300)'. This was corroborated by the deposition of RJ Simiyu, the District Land Officer. The court found that the letter from JP Hulme, relied on by the lower courts, was insufficient to override the documentary evidence, and there was no evidence that Hulme had authority to bind the company. The court concluded that the surrender was for conversion, and the subsequent subdivisions and sales were legal.

p. 35
04

Whether the appellants' right to fair hearing under Article 50(1) was violated.

Holding

The superior courts below violated the appellants' right to fair hearing by determining the matter on affidavit evidence alone without viva voce evidence, and by finding Mark Too guilty of fraud without proper proof.

Reasoning

The court held that in a highly contentious matter involving disputed ownership of land and competing claims, a trial process involving examination, cross-examination, and re-examination of witnesses is the only way to resolve competing allegations. The court noted that the Mutunga Rules allow for oral evidence, and it was not prudent to determine the matter by affidavit evidence only. On the fraud issue, the court found that the Court of Appeal adjudged Mark Too guilty of fraud without affording him a hearing and without cogent evidence. The court emphasized that fraud must be strictly proved to a standard higher than a balance of probabilities, and the particulars of fraud pleaded were too vague.

p. 26
05

Whether Sirikwa has a right to the suit parcels on account of its members being squatters.

Holding

Sirikwa's members were not squatters on the suit parcels and had no legal basis to claim a right to them.

Reasoning

The court adopted the Black's Law Dictionary definition of a squatter as 'a person who settles on property without any legal claim or title.' The court found that no member of Sirikwa ever took actual physical possession of the suit parcels. Their claim was based on heritage from forefathers who were evicted in the 1920s and later worked as farm hands. The court noted the absence of evidence to show lineage or who should be compensated, and concluded that the claim could not succeed without occupation.

p. 32

Legal principles established

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  • The President's power to allocate land is limited to unalienated government land, not private property.
  • An illegal promise or act by a public official cannot create a legitimate expectation.
  • Fraud in civil cases must be specifically pleaded and proved to a standard higher than balance of probabilities.
  • The terms of a land grant or disposition must be proved by the document itself, not outside evidence.
  • A surrender of a lease is a consensual transaction; its purpose is determined by the written instruments.

Court orders

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  1. 1.The consolidated appeal is hereby allowed.
  2. 2.The judgment and orders of the trial and appellate courts are hereby set aside in their entirety.
  3. 3.The 1st respondent herein, to wit, Sirikwa Squatters Group, its agents, members, servants, employees and/or representatives are hereby permanently restrained from entering, taking possession of and in any other manner interfering with Fanikiwa's (the 1st appellant) quiet possession of the suit properties described as LR No Pioneer/ngeria Block 1 (EATEC) 7070, 7068, 3395, 5903, 2454, 476, 1860, 475, 5497, 5494, 5492, 5489, 5486, 1384, 1383, 5484, 474, 472, 5485, 5487, 5490, 5488, 5491, 5493, 1861, 5496, 1862, 5491, 473, 477, 471, 1353, 1375, 1374, 1379, 1378, 1380, 1381, 1382, 1852, 1386, 1385, 85, 5495 and 5902.
  4. 4.We declare that the finding by the superior courts below to the effect that the retired President's approval of allocation of the suit parcels and the subsequent surrender of the titles was for purposes of settling Sirikwa's members, violated and arbitrarily deprived the 3rd appellant herein, Lonrho Agribusiness, of its rights over and interests in the suit parcels as guaranteed under article 40 of the Constitution.
  5. 5.All parties shall bear their own costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
Martha K KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
Philomena M MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
Smokin C WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
Isaac LenaolaSCJ
Currently serving
majority
William Ouko
William OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Eldoret
Civil Appeal No 45 of 2017 (consolidated with Civil Appeal No 44 & 68 of 2017)
Jurisdiction invoked
Article 163(4)(a) of the Constitution
Consolidated with
Petition 35 (E038) of 2022, Petition 36 (E039) of 2022

Relief refused

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Sirikwa's claim for allocation of the suit parcels and cancellation of the appellants' titles

The court found that Sirikwa had no legitimate expectation and that the surrender was for conversion, not settlement.

p. 38

Costs

All parties shall bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a representation, promise, practice, conduct or an action outside the prescription of the law or undertaken by a person or entity without competent authority is illegal and cannot give rise to legitimate expectation.
p. 31 Legitimate expectation
the subject suit parcels, being land that was at the time private property vested in Lonrho Agribusiness did not fall within the category of 'unalienated government land' envisaged under the GLA and former President Moi had no legal capacity and authority to allocate or confer any legitimate interest in the subject suit parcels to members of Sirikwa or any other entity.
p. 31 Presidential power to allocate land
Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.
p. 28 Standard of proof for fraud
When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself
p. 4 Best evidence rule
we are not convinced that it was prudent and judicious, considering the highly contentious nature of the claims and circumstances of each of the numerous parties involved to determine this matter by affidavit evidence only.
p. 26 Need for viva voce evidence
All parties shall bear their own costs.
p. 8 Costs order

Key timeline

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1998
Suit parcels registered as private property in name of Lonrho Agribusiness.
2000-11-02
Surrender of titles registered, stated purpose: conversion to freehold under Registered Land Act.
2023
Supreme Court allows appeal, sets aside lower courts, grants permanent injunction against Sirikwa Squatters Group.

Practical implications

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For lawyers

Plead fraud with specificity

When alleging fraud in land disputes, you must plead every detail with particularity and prove it to a standard higher than the usual civil balance of probabilities. Vague allegations will be struck out. Also, rely on documentary evidence for land transactions; oral testimony cannot override written terms.

For businesses

Document all land transactions

Ensure every land grant, surrender, or transfer is properly documented and registered. Relying on informal promises from government officials, even high-ranking ones, is risky. If a promise is illegal or beyond the official's authority, it creates no rights. Keep clear records of the purpose of any surrender.

For individuals

No rights from illegal promises

If a government official promises you land that is already privately owned, that promise is void. You cannot claim a legitimate expectation to that land. Always verify the legal status of land before acting on any allocation. Squatters cannot rely on a President's directive if it violates the law.

Frequently asked questions

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What is legitimate expectation in Kenya land law?+

Legitimate expectation arises when a public authority makes a clear, lawful promise that you rely on. But if the promise is illegal or the authority lacked power to make it, you have no claim. In this case, the President's promise to allocate private land was unlawful, so squatters had no legitimate expectation.

Can the President of Kenya allocate private land to squatters?+

No. The President's power to allocate land under the Government Lands Act is limited to unalienated government land. Private land owned by a company or individual cannot be allocated by the President. Any such allocation is void and creates no legal rights.

What standard of proof is required for fraud in civil cases in Kenya?+

Fraud must be specifically pleaded with full details and proved to a standard higher than the ordinary balance of probabilities, though not beyond reasonable doubt. The court requires clear and convincing evidence, not just suspicion or general allegations.

What does 'surrender of a lease' mean in Kenyan land law?+

A surrender is a voluntary agreement between the landlord and tenant to end the lease early. The purpose of the surrender is determined by the written documents, not outside statements. In this case, the surrender was to convert leasehold to freehold, not to settle squatters.

Later judgments citing this (24)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fanikiwa Limited & 3 others v Sirikwa Squatters Group & 17 others", Case Analysis (2023). Petition 32 (E036), 35 (E038) & 36 (E039) of 2022 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/105/eng@2023-12-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.