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ELCPartially AllowedConstitutional Petition No. 15 of 2013· [2015] KEELC 671 (KLR)

Clare Nasimiyu Wanjala v Moses Wakwoma Kakoi & 3 others [2015] KEELC 671 (KLR)

Environment and Land Court (High Court), Kitale
4 February 2015
EOE. Obaga
1,523 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitale court cancelled a land title obtained through a secret scheme, returning the plot to its rightful Kenyan owner under Article 40.

What this practically means

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Executive summary

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The petitioner, Clare Nasimiyu Wanjala, petitioned the High Court at Kitale seeking cancellation of the title to Milele Plot No. 664 (Kiminini/Matunda/664) registered in the name of the second respondent and its re-registration in her name, an eviction order against the first and second respondents, mesne profits, damages for destroyed property and costs. Her case was that in 1998 she exchanged her plot at Matunda Kiminini for two acres of the first respondent's Bungoma land; after a dispute over acreage, the first respondent evicted her from Bungoma following a Tongaren Land Disputes Tribunal ruling, and she discovered the first respondent had sold her plot to the second respondent. Only the first respondent appeared and testified, claiming the exchanged plot measured only 1½ acres. The court found the exchange was not in doubt, and from the green card that the second respondent was registered first owner on 27/7/2007 while the first respondent was in possession, concluding the registration was effected with the first respondent's support in a calculated scheme to deprive the petitioner of her land. The court held her Article 40 constitutional right to property was violated, cancelled the title in the second respondent's name, and ordered it registered back to the petitioner, with an eviction order should either respondent or anyone claiming under them be in possession. However, mesne profits and damages for the destroyed houses were refused for lack of basis, as both parties had occupied each other's land until the 2010 court order. The petitioner was awarded costs against the first and second respondents.

Key legal issues

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01

Violation of the right to property under Article 40

Holding

The first and second respondents arbitrarily deprived the petitioner of her property by secretly having it registered in the second respondent's name

Reasoning

The court found the parties had exchanged plots. The green card showed the second respondent as first registered owner (27/7/2007), contradicting the petitioner's account of a transfer through the first respondent, but the registration occurred while the first respondent was in possession. The court inferred a calculated scheme by the first respondent behind the sale, depriving the petitioner of her land in violation of Article 40.

p. 3
02

Cancellation of illegally acquired title

Holding

The second respondent did not defend his title; the title was cancelled and the land ordered registered back to the petitioner

Reasoning

The court held that the registration of the second respondent was done with the support of the first respondent and was unclear/illegal, and since the second respondent did not come out to defend the title, cancellation and re-registration to the petitioner followed.

p. 3
03

Mesne profits and damages for destroyed houses

Holding

Both claims refused for lack of evidential basis

Reasoning

Both parties had enjoyed each other's land until the 2010 court order, the petitioner had already settled on her original land, and there was no evidence that the first respondent demolished the houses; the losses flowed from the court-ordered exchange-back, not from wrongful acts.

p. 3

Legal principles established

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  • A title procured through a calculated scheme to deprive a person of her property violates her constitutional right to property under Article 40 and may be cancelled

Court orders

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  1. 1.Order cancelling title in respect of LR Matunda/Kiminini/664 registered in the name of Danson Sitati Simiyu and the same be registered in the name of the petitioner Clare Nasimiyu Wanjala
  2. 2.Eviction order against the second respondent or first respondent or anyone claiming under them should they be in possession of the said land
  3. 3.Costs of the petition to be paid by the first and second respondents

Authorities

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Legislation

  • Constitution of KenyaArticles 21(1), 22(3)(c), 23(1) & (3), 24(1)(d)(e), 25(c), 27(1) & (2), 28, 29(a), 39, 40(2)(a) & (b), 47
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006null
  • Transitional and Consequential ProvisionsArticle 262(19)
Jurisdiction invoked
Article 23(1) & (3) of the Constitution; Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006; Article 262(19) Transitional and Consequential Provisions

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, "Clare Nasimiyu Wanjala v Moses Wakwoma Kakoi & 3 others [2015] KEELC 671 (KLR)", Case Analysis (2015). Constitutional Petition No. 15 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/671/eng@2015-02-04

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