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ELCDismissedPetition dated 28th November 2013 (Kisumu)· [2017] KEELC 49 (KLR)

Oburu Odinga v District Land Registrar - Kisumu & 2 others [2017] KEELC 49 (KLR)

Environment and Land Court
13 December 2017
2,302 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a challenge to the revocation of a Kisumu land title, ruling that the owner had been given a chance to respond and delayed too long.

What this practically means

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Executive summary

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The Petitioner, Hon. Dr. Oburu Ondiga, petitioned the Environment and Land Court at Kisumu against the District Land Registrar, Kisumu and the Attorney General, seeking declarations that the revocation of his title to Kisumu Municipality/Block 7/509 by Gazette Notice No. 15577 of 26th November 2010 was unconstitutional and void, judicial review orders of certiorari, prohibition and mandamus, a declaration of indefeasible ownership, damages and costs. He asserted he was allocated the land in 2000, paid the requisite premiums, obtained a lease in 2001 and enjoyed quiet possession, and was never heard before the revocation. Kenya Anti-Corruption Commission was enjoined as an Interested Party and opposed the petition, contending the land was excised from Kenya Railways Corporation land without due process, that the Commissioner of Lands withdrew the allotment by letter of 10th March 2009, that the Petitioner never responded, and that the legality of the title was already in issue in Kisumu HCCC No. 29 of 2010. The court framed three issues: constitutionality of the gazette notice, due process, and the appropriate reliefs. It found that the Interested Party's claim that the land vested in Kenya Railways Corporation was not controverted; that the letter of 10th March 2009, sent to the Petitioner's undisputed postal address, afforded him an opportunity to be heard which he ignored; and that he delayed unreasonably in bringing the petition. Applying Munyu Maina v Hiram Gathina Maina, the court held the Petitioner bore the burden of demonstrating lawful acquisition, and that the title's legality should be decided in the pending HCCC No. 29 of 2010. The petition was dismissed with costs to the Interested Party only.

Key legal issues

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01

Whether the revocation of the Petitioner's title by gazette notice was unconstitutional for want of due process

Holding

No - the Petitioner was notified by the Commissioner of Lands' letter of 10th March 2009 and given an opportunity to make representations, which he declined; due process was followed.

Reasoning

The court took judicial notice that the postal address used in the letter of 10th March 2009 was the Petitioner's and presumed receipt. The letter withdrew the allotment and required surrender of the title documents. The Petitioner neither surrendered the documents nor made any representation, so he cannot claim he was not heard before the revocation notice of 26th November 2010.

p. 3
02

Whether the Petitioner's title to the suit land is protected and its validity determinable in this petition

Holding

The legality of the title is already an issue in Kisumu HCCC No. 29 of 2010, filed before this petition, and should be decided in that suit.

Reasoning

The Interested Party's suit HCCC No. 29 of 2010, filed 4th March 2010, already claims the title was acquired illegally and fraudulently, and that suit allows full evidence-taking, unlike the affidavit-limited petition. The court found it inappropriate to duplicate those issues in the petition.

p. 4
03

Whether the suit land was available for allocation to the Petitioner

Holding

The land was vested in Kenya Railways Corporation and was not controverted as having been excised without due process, so it could only be allocated in accordance with the Kenya Railways Act.

Reasoning

The Interested Party contended the parcel was excised from land vested in Kenya Railways Corporation under Legal Notice No. 24 of 1986 without the requisite consent. The Petitioner did not dispute this contention, so the court accepted that the land's availability for allocation was governed by the Kenya Railways Act.

p. 3
04

Whether the Petitioner is guilty of inordinate delay

Holding

Yes - the petition was filed only after the Interested Party sought judgment in HCCC No. 29 of 2010, long after the revocation notice.

Reasoning

The revocation was communicated in 2009 and gazetted in November 2010, but the petition was filed in November 2013, prompted by the Interested Party's notice of motion of 25th September 2013 seeking judgment. The court agreed the delay was unexplained and disentitled the Petitioner to discretionary judicial review remedies.

p. 4

Legal principles established

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  • Where a person's title is under challenge, the burden lies on that person to demonstrate that its acquisition was procedural and lawful
  • A letter requiring a title holder to show cause before cancellation amounts to an opportunity to be heard

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs awarded to the Interested Party only

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 23(3)
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 50
  • Government Land Act
  • Kenya Railways Corporation ActSection 14, Chapter 397 of Laws of Kenya
  • Legal Notice No. 24 of 1986

Cases cited (1)

  • Munyu Maina v Hiram Gathina Maina
    {2013} eKLR
Jurisdiction invoked
Article 23(3) of the Constitution (petition for enforcement of Bill of Rights); judicial review orders sought under Article 23(3)

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, "Oburu Odinga v District Land Registrar - Kisumu & 2 others [2017] KEELC 49 (KLR)", Case Analysis (2017). Petition dated 28th November 2013 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/49/eng@2017-12-13

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