Boniface David Chege & 33 others v Attorney General & 4 others [2017] KEELC 66 (KLR)
The bottom line
#A Kenyan court cancelled land titles using tribunal proceedings the owners never took part in; the Environment and Land Court restored the rightful owners.
What this practically means
#Executive summary
#Key legal issues
#Fair hearing
Petitioners 1 and 3rd-34th, registered proprietors and occupiers, were not parties to the tribunal and magistrate's court proceedings and were condemned unheard, breaching Article 50(1) and natural justice
The court found from the petition, submissions and annexures that the affected registered proprietors were excluded as parties before the tribunal and the adopting magistrate's court, yet the orders cancelled their titles. The audi alteram partem rule requires that no party be condemned unheard. Reliance was placed on James N Wa Wambu v Republic and Barasa W. Wabomba v Omunyin Kituyi, where registered owners not heard could not have titles cancelled.
Jurisdiction of the Land Disputes Tribunal
The South Kinangop District Land Disputes Tribunal acted in excess of its statutory jurisdiction by cancelling titles and ordering registration of ownership; its award was a nullity and void ab initio
Section 3(1) of the Land Disputes Tribunal Act limited tribunals to boundary disputes, claims to occupy or work land, and trespass. Ownership disputes and title cancellation fell outside this mandate. Since the award was founded on an ultra vires exercise, the adoption and decree were equally null, following Omega Enterprises on the collapse of proceedings built on a void foundation.
Right to property
The cancellation of the Petitioners' titles without due process violated their constitutional right to own property under Article 40(1) & (3) and Section 75 of the former Constitution
Having found the proceedings null for want of jurisdiction and breach of natural justice, the court held that the resulting cancellation of titles and decree amounted to a taking of property without due process, violating Articles 40, 43(1)(b), 47(1) and 50(1) of the Constitution. Reinstatement of the Petitioners as proprietors followed as the remedy.
Legal principles established
#- A tribunal without jurisdiction over ownership of land cannot cancel title; its award is a nullity void ab initio
- Registered proprietors affected by proceedings must be given a hearing; condemning them unheard breaches natural justice and the right to a fair hearing
Court orders
#- 1.The petition is allowed
- 2.The award of the South Kinangop District Land Disputes Tribunal in case No. 77 of 2008 and the subsequent decree of the Nyahururu Principal Magistrate's Court in Land Dispute Case No. 1 of 2012 are quashed
- 3.The registration of the 3rd-5th Respondents as proprietors of the suit property is cancelled and the 1st-34th Petitioners reinstated as proprietors thereof
- 4.The Petitioners to have costs of the petition
- Jurisdiction invoked
- Articles 20(1) & (2), 22(1), 23(1), 27(1) & (2) and 64 of the Constitution; Environment and Land Court Act (2011)
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.
- Harrison Maina Kariuki & 2 others v Jane Waithera & another [2022] KEELC 224 (KLR)[2022] KEELC 224 (KLR)28 Apr 2022
- Arthur Juguna Kamau v Eunice Wangari Karanja & County Land Registrar [2018] KEELC 1423 (KLR)[2018] KEELC 1423 (KLR)11 Oct 2018
Cite this brief
#Cite this brief
Caselaw, "Boniface David Chege & 33 others v Attorney General & 4 others [2017] KEELC 66 (KLR)", Case Analysis (2017). ELC Petition No. 9 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/66/eng@2017-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.