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ELCStruck OutPetition dated 16th December, 2013· [2016] KEELC 1132 (KLR)

Mamduh Mohamed Taib v Kilifi County Council [2016] KEELC 1132 (KLR)

Environment and Land Court
26 February 2016
OAO. A. Angote
2,100 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kilifi landowner's challenge to Kshs.16.8 million in county rates failed because he could not prove legal ownership of the land.

What this practically means

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Executive summary

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The Petitioner filed a petition dated 16th December 2013 claiming to be the owner of plots MN/III/7710/9 and MN/III/7703/2 at Kikambala in Kilifi County, said to have been created from consolidation and subdivision of plots 4403 and 4409, inherited from his late father. He challenged demand notices from the Respondent County Government totalling Kshs.16,862,200 in rate arrears and penalties, contending the demands were illegal, arbitrary and in breach of Articles 40, 47 and 35 of the Constitution, and sought a declaration that the demand was illegal and an injunction against interference with his land. The Respondent countered that the Petitioner lacked locus standi, as the demand notices were issued to Mohsen Mohamed Taib and Johra Ali Mohamed, the registered owners; that no consolidation and subdivision certificate had issued to the Petitioner; that having paid rates for plot 4402 for 2010 and 2011, the Petitioner was estopped from refusing to pay rates on the subdivided plots; and that the Petition was premature and an abuse of process. The court framed one issue: the Petitioner's locus standi. The Certificates of Title and demand notices showed the properties registered in the administrators' names. The undated, unattested, unregistered Vesting Assent relied on by the Petitioner was held not to be a conveyancing document capable of passing an interest in land, and no Certificate of Confirmation of Grant was produced. The court held that only the administrators of the deceased's estate had standing, that the Petitioner was not the rateable owner under Section 7(1) of the Valuation for Rating Act, and struck out the Petition without going into the merits, with costs to the Respondent.

Key legal issues

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01

Whether the Petitioner had locus standi to institute the Petition

Holding

The Petitioner lacked locus standi: the suit plots are registered in the names of Mohsen Mohamed Taib and Johra Ali Mohamed as administrators of the estate, and the Petitioner is not the rateable owner

Reasoning

The Certificates of Title and demand notices showed the properties registered in the names of the administrators, not the Petitioner. The alleged Vesting Assent was undated, unattested and unregistered and could not pass an interest in land. The Petitioner did not produce a Certificate of Confirmation of Grant. The family having subjected itself to the Law of Succession Act, only the administrators had standing to institute the Petition.

p. 4
02

Whether Article 22(1) of the Constitution confers standing on the Petitioner

Holding

Article 22(1) affords every person the right to institute court proceedings, but the Petitioner must first show he is legally entitled to the property before complaining of violation

Reasoning

The court acknowledged that Article 22(1) affords every person the right to claim infringement of rights in the Bill of Rights. However, the Petitioner's claimed rights to the suit property had not crystallised, since the transfer via the defective vesting assent was unenforceable and the estate had not been transmitted to the beneficiaries. Without established entitlement to the property, there was no right capable of violation.

p. 4

Legal principles established

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  • Before a person can complain of violation of rights to property or fair administrative action in respect of land, they must first show they are legally entitled to that property
  • An undated, unattested and unregistered vesting assent is not a conveyancing document capable of passing an interest in land
  • A rateable owner under Section 7(1) of the Valuation for Rating Act is the owner of the registered property or a lessee of such property

Court orders

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  1. 1.The Petition dated 16th December, 2013 struck out with costs

Authorities

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Legislation

  • Rating ActSection 22(1)
  • Valuation for Rating ActSection 7(1)
  • Constitution of Kenya, 2010Article 40(2)(a) and (b), Article 47, Article 35, Article 22(1), Article 260
  • Law of Succession Act
Jurisdiction invoked
Article 22(1) and Article 23 of the Constitution (enforcement of Bill of Rights); Article 40, 47 and 35 invoked

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, "Mamduh Mohamed Taib v Kilifi County Council [2016] KEELC 1132 (KLR)", Case Analysis (2016). Petition dated 16th December, 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1132/eng@2016-02-26

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