Robert Mutiso Lelli v Kenya Medical Training College & 2 others [2021] KECA 475 (KLR)
The bottom line
#Kenya's Court of Appeal cancelled land titles obtained over public-purpose land, confirming that property rights don't protect unlawfully acquired property.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant lawfully acquired the subject plots
The allocation was unlawful because the plots were already reserved for the 1st respondent for public purpose and were not available for alienation.
The 1st respondent, a statutory public institution, was first in time allottee of Plots 61 to 64 by letter dated 18 December 1996 delineated on PDP No. 42/21/95/04A. No evidence showed the allocation was superseded, the PDP cancelled, or the land reverted to unalienated status. Under the Government Lands Act the President allocates unalienated land, and land reserved for public purpose was beyond the Commissioner's reach for reallocation, rendering the appellant's acquisition unlawful.
Whether the appellant's titles should be cancelled notwithstanding the absence of pleaded fraud and his innocence as purchaser
Yes; unlawfully acquired titles are liable to cancellation because Article 40(6) excludes protection of unlawfully acquired property.
Sanctity of title is not a vehicle for fraud or illegality. Article 40(6) expressly qualifies the property right to exclude unlawfully acquired property. Chemey Investment and other authorities establish that courts decline to protect illegally or fraudulently obtained titles merely because a person is registered as proprietor. The appellant's titles issued through a defective process were therefore liable to cancellation or surrender.
Whether the 2nd and 3rd respondents were properly joined and allowed to participate without filing pleadings
The appellant waived the complaint by acquiescing in the court's orders permitting them to file statements and by failing to object at the hearing.
The court had ordered on 3rd May 2018 that the interested parties be given leave to file written statements, and the appellant raised no objection then or when the hearing proceeded on 17th October 2018. Having conceded, it was too late to complain on appeal.
Whether costs were correctly awarded to the 1st respondent
Costs follow the event under section 27 of the Civil Procedure Act; the successful 1st respondent was entitled to costs.
The 1st respondent succeeded against the appellant in the trial court, so the award of costs was proper under the trite principle that costs follow the event.
Legal principles established
#- Land already allocated and reserved for public purpose is placed beyond the Commissioner of Lands' power of reallocation to private individuals, and any such allocation is unlawful.
- The constitutional right to property does not protect property found to have been unlawfully acquired, and such titles are liable to cancellation irrespective of pleading and proof of fraud against the registered owner.
- On a first appeal the Court of Appeal must reconsider and evaluate the evidence and draw its own conclusions, while making allowance for not having heard the witnesses.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- On appeal from
- Environment and Land Court at Nairobi
- ELC Case No. 354 of 2009
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal jurisdiction (Appellate Jurisdiction Act/Civil Procedure)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Robert Mutiso Lelli v Kenya Medical Training College & 2 others [2021] KECA 475 (KLR)", Case Analysis (2021). Civil Appeal No. 555 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/475/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.