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Court of AppealDismissedCivil Appeal No. 30 of 2015· [2016] KECA 68 (KLR)

Flemish Investments Limited v Town Council of Mariakani [2016] KECA 68 (KLR)

Court of Appeal of Kenya
25 November 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
2,883 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that land set aside for public use can never be privately owned, even by someone holding a valid-looking title deed.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Makhandia, Ouko and M'inoti, JJ.A) dismissed this first appeal against the Environment and Land Court (Mukunya, J.), which had held that Plot No. 34 - a two-acre parcel carrying a public cattle dip constructed in 1978 - was not part of LR No. 24366 registered in the appellant's name since 2006. The appeal was heard on written submissions by consent. The appellant, invoking sections 23(1) and 24 of the repealed Registration of Titles Act, argued its certificate of title was conclusive and that even proven fraud would yield only damages. The respondent maintained it had not sought nullification of title, only that Plot No. 34 was never lawfully part of the suit property. The court, hearing the appeal by way of retrial, found as an undisputed fact that the plot had been set apart for a public cattle dip in 1978 under the Trust Land Act. It affirmed the trial judge's finding that Ndambuki fraudulently included the plot in the suit property, and held that while fraud was not strictly proved against the appellant, its bona fides were practically non-existent given the conspicuous dip and its attempt to relocate it. Decisively, the court held that section 117(2) of the former Constitution extinguished all private rights over the plot once set apart, so neither Ndambuki nor the appellant could ever acquire title, and the purported transfer was void ab initio notwithstanding the Registration of Titles Act. The appeal was dismissed in its entirety with costs to the respondent, and the excision of Plot No. 34 and its vesting in the Kilifi County Government in trust for the public was effectively upheld.

Key legal issues

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01

Effect of setting apart Trust Land for public purposes under the former Constitution and the Trust Land Act

Holding

Setting apart Plot No. 34 in 1978 for a public cattle dip extinguished all customary and private rights over it; neither the Katetei family nor Ndambuki could sell it, and its inclusion in the suit property was void ab initio.

Reasoning

Section 115(1) vested Trust Land in the county council for the benefit of residents; section 117(2) extinguished prior customary rights once land was set apart. The 1978 setting apart of Plot No. 34 preceded all the transfers. The constitutional extinguishment operates as a higher legal norm than the Registration of Titles Act, so registration could not revive or confer title to land already stripped of private rights.

p. 4
02

Whether the appellant was party to fraud or a bona fide purchaser

Holding

The appellant's bona fides were practically non-existent given the conspicuous public cattle dip and its efforts to have it relocated, but fraud was not strictly proved against it; the appeal nonetheless failed on the constitutional ground.

Reasoning

A diligent purchaser would have inspected the property; the presence of a public cattle dip should have alerted the appellant. Its seeking permission to relocate the dip at its own expense showed knowledge. However, applying Gudka v. Dodhia and R. G. Patel v. Lalji Makanji, fraud must be strictly proved beyond mere balance of probabilities and was not established against the appellant. The trial court's result was upheld on the stronger extinguishment ground.

p. 4

Legal principles established

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  • Once land is set apart for public purposes under section 117(2) of the former Constitution, all prior private rights over it are extinguished by operation of the Constitution, and no person can lawfully sell or transfer it thereafter.
  • An indefeasible certificate of title cannot confer title to land whose ownership the Constitution had already extinguished; a title acquired over constitutionally-expropriated public land is void ab initio.
  • Allegations of fraud must be strictly proved, beyond a balance of probabilities, even in civil proceedings.
  • On a first appeal under section 16 of the Environment and Land Court Act, the appellate court re-evaluates the evidence as on a retrial but defers to the trial judge on witness credibility.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Costs of the appeal to the respondent

Authorities

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Legislation

  • Registration of Titles ActCap 281 (repealed), section 23(1), section 24
  • Environment and Land Court Act2011, section 16
  • Trust Land ActCap 288, section 13
  • Constitution of Kenya (former)Chapter IX, sections 115(1), 115(2), 117(1), 117(2)

Cases cited (8)

  • Bruce Joseph Bockle v. Coquero Ltd, CA No. 41 of 2013
    CA No. 41 of 2013
  • Dr. Joseph N. K. Arap Ng'ok v. Justice Moijo ole Keiwua & 5 Others, CA No. 60 of 1997
    CA No. 60 of 1997
  • Nyangate Guto alias Watson Mogere Mogoko v Maxwell Okemwa Mogoro & Another, CA No 165 of 2011
    CA No 165 of 2011
  • Multiple Hauliers East Africa Ltd v. The Attorney General & 10 Others, Petition No. 88 of 2010
    Petition No. 88 of 2010
  • Kenya Guards & Allied Workers Union v. Securicor Guards Services & 38 Others, HC Misc. App. No. 1159 of 2003
    HC Misc. App. No. 1159 of 2003
  • Selle & Another v. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Gudka v. Dodhia
    [1982] KLR 376
  • R. G. Patel v. Lalji Makanji
    [1957] EA 314
On appeal from
Environment and Land Court of Kenya at Mombasa
ELCC No. 459 of 2010
Jurisdiction invoked
Section 16 of the Environment and Land Court Act, 2011 (first appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Flemish Investments Limited v Town Council of Mariakani [2016] KECA 68 (KLR)", Case Analysis (2016). Civil Appeal No. 30 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/68/eng@2016-11-25

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