Ethics & Anti-Corruption Commission v Njuguna Macharia [2015] KEELC 660 (KLR)
The bottom line
#Kenya's anti-corruption commission can sue to recover public land even decades after allocation, and courts will freeze such land pending trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit is barred by section 7 of the Limitation of Actions Act
- 2.Whether the objection fails as it does not raise a pure point of law
- 3.Whether the Plaintiff has locus standi to institute the suit and to investigate the legality of the allocation, vis-à-vis the National Land Commission and the Judiciary's mandate under Article 159
- 4.Whether the Plaintiff has established a prima facie case with a probability of success for the grant of a temporary injunction
- 5.Whether the Plaintiff would suffer irreparable loss not compensable by damages, and where the balance of convenience lies
Key legal issues
#Whether the suit is time-barred under section 7 of the Limitation of Actions Act
Not time-barred, since section 42(1)(k) excludes actions for recovery of public property from the Act
The court held that the amendment introduced by Act No. 7 of 2007 to section 42 of the Limitation of Actions Act excludes actions for recovery or compensation for loss of public property from the limitation regime. Since the Plaintiff seeks recovery of allegedly lost public property, the 12-year period in section 7 is inapplicable. Further, because whether the suit property is public land requires establishing facts, the objection is not a pure point of law under Mukisa Biscuit.
Whether the Plaintiff has locus standi to investigate and sue
Yes; sections 11(1)(d), 11(1)(j) and 13(2)(c) of the Ethics and Anti-Corruption Commission Act and Article 79 of the Constitution confer the mandate
The court found that the EACC's statutory mandate includes investigating alleged illegal alienation of public property and instituting recovery proceedings, and that Article 79 grants it similar status and powers as Chapter Fifteen commissions. It therefore did not usurp the functions of the Judiciary under Article 159 or of the National Land Commission, and the preliminary objections on locus standi and jurisdiction failed.
Whether a prima facie case with probability of success was established
Yes; evidence showed parcel 209/9323 was government land reserved for public use and not available for alienation
The court reviewed the Part Development Plan, the lease, correspondence showing refusal of allocation, complaints by the Commissioner of Social Services, and the Commissioner of Lands' revocation of a similar excision (LR 209/12800), concluding the suit property was hived off land not available for allocation under section 3(a) of the Government Lands Act. The Defendant's claim of re-planning and change of public purpose was unsupported by evidence.
Whether irreparable loss and balance of convenience favour the injunction
Yes; loss of public land cannot be compensated by damages and public interest prevails
Relying on the EACC v James Raymond Njenga decision and Susan Waithera Kariuki, the court held that public loss of land set aside for public use is not remediable in damages and that where public and private interests conflict, the public interest must prevail, so the balance of convenience favours preserving the property pending trial.
Legal principles established
#- The Limitation of Actions Act does not apply to actions seeking recovery or compensation in respect of loss of or damage to public property
- A preliminary objection that requires determination of facts is not a pure point of law
- The EACC has statutory and constitutional mandate to investigate illegal alienation of public land and institute recovery proceedings
- Land reserved for public use is not available for alienation to private persons under section 3(a) of the repealed Government Lands Act
- Loss of public land cannot be adequately compensated by damages; public interest prevails over private interest in the balance of convenience
Court orders
#- 1.The Defendant be and is hereby restrained whether by himself, his servants, chargees or assigns from selling, advertising for sale, transferring, further charging, leasing, subdividing, wasting or in any manner howsoever disposing of L.R. No. 209/14712 situated along Waiyaki Way, Nairobi, pending the hearing and determination of this suit or until further orders
- 2.The costs of the Plaintiff's Notice of Motion dated 11th March 2014 shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 11(1)(d), 11(1)(j) and 13(2)(c) of the Ethics and Anti-Corruption Commission Act; section 23 of the Anti-Corruption and Economic Crimes Act; Order 40 Rules 1, 4 and 10 and Order 51 Rule 1 of the Civil Procedure Rules; section 3A of the Civil Procedure Act; Article 79 of the Constitution
Relief refused
#Alternative order for preservation of the suit property
The court granted only the injunctive relief in the dispositive orders; the alternative preservation order was not included in the final orders
Costs
The costs of the Plaintiff's Notice of Motion dated 11th March 2014 shall be in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Defendant be and is hereby restrained whether by himself, his servants, chargees or assigns from selling, advertising for sale, transferring, further charging, leasing, subdividing, wasting or in any manner howsoever disposing of L.R. No. 209/14712 situated along Waiyaki Way, Nairobi, pending the hearing and determination of this suit or until further orders
The costs of the Plaintiff's Notice of Motion dated 11th March 2014 shall be in the cause
I therefore find from the foregoing reasons that a prima facie case with probability of success has been established by the Plaintiff
the loss to the Kenyan public where land set aside for public use is taken away cannot be adequately remedied by an award of damages
to the extent that the issue as to whether the suit property is public land or not is one that will have to be determined by establishing certain facts, then the objection does not raise a pure point of law
Issues in the judgment
#The deponent's evidence refers to a lease by the Department of Social Services dated 11th November 1997, while the Defendant's submissions describe a lease agreement dated 11th November 1977; the judgment does not reconcile the discrepancy
The case number of the suit itself is not stated in the judgment text; only related suits (ELC No. 270 of 2008, HCCC No. 270 of 2008) are referenced
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ethics and Anti-Corruption Commission v Tum (Administrator of the Estate of Nathaniel Kipkorir Tum) & another; Board of Management Kitale School Primary & another (Interested Parties) (Environment and Land Case E020 of 2023) [2025] KEELC 5157 (KLR)[2025] KEELC 5157 (KLR)9 Jul 2025
- Kenya Anti-Corruption Commission v Asis Stores Ltd & 3 others (Environment & Land Case 306 of 2012) [2025] KEELC 3707 (KLR)[2025] KEELC 3707 (KLR)8 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Ethics & Anti-Corruption Commission v Njuguna Macharia [2015] KEELC 660 (KLR)", Case Analysis (2015). Nairobi ELC No. 130 of 2014 (as per the Notice of Motion dated 11th March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/660/eng@2015-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.