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ELCDismissedPet. No. 35 of 2016· [2017] KEELC 3065 (KLR)

Trusted Society of Human Rights Alliance v Mohammed Hussein Mulla Nanji Trust & 2 others [2017] KEELC 3065 (KLR)

Environment and Land Court
20 April 2017
DOD. O. Ohungo
2,278 words in judgment
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The bottom line

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A Kenyan court confirmed that freehold-registered land is private property, so a trust could sell or lease it without any public-land restrictions.

What this practically means

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Executive summary

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The petitioner, a human rights society, petitioned the Environment and Land Court at Nakuru seeking a declaration that the intended sale and/or lease of land parcels Kiambogo/Kiambogo Block 2/527 and 528 by the 1st respondent, a registered trust, violated Article 62(4) of the Constitution, and further declarations that the National Land Commission and the Attorney General had abdicated their constitutional roles. The petitioner contended that although the trust was the registered proprietor, the land was initially government-owned and served public educational purposes, hence was public land whose disposal required an Act of Parliament. The 1st respondent, relying on the trust deed clause 3 which empowered trustees to sell, exchange or convert trust property, maintained the parcels were private land under Article 64 and that it was free to dispose of them. The 2nd and 3rd respondents entered appearance but took no further part. Justice D. O. Ohungo held that the parcels, held under freehold tenure with absolute registered title and no encumbrance save a court-ordered inhibition, were plainly private land; the trust was therefore entitled to the protection of Article 40 and to the benefits of sections 24 and 25 of the Land Registration Act, applying the sanctity-of-title principle in Joseph N.K. Arap Ng'ok. The court found the petition devoid of merit and dismissed it. On costs, applying the Mutunga Rules and the Supreme Court's guidance in Jasbir Singh Rai, the judge awarded costs to the 1st respondent, holding that the award would not hinder access to court.

Key legal issues

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01

Character of the suit land - public vs private

Holding

The parcels are private land under Article 64 of the Constitution, being registered freehold land

Reasoning

Both parties agreed the 1st respondent was the registered proprietor with absolute title, issued under the Registered Land Act, with no encumbrance beyond a court-ordered inhibition. Article 64 defines private land to include registered land held under freehold tenure. Since the tenure was freehold, Article 62(4) on disposal of public land was inapplicable.

p. 3
02

Powers of the trustees over the trust property

Holding

The trustees could in their absolute discretion sell, exchange or let the property under clause 3 of the trust deed

Reasoning

The trust deed empowered the trustees to sell, exchange or convert trust property into money and to invest proceeds as they thought proper. The court held that as freehold title holder the trust was free to use the properties, including selling or leasing, in furtherance of its objectives.

p. 3
03

Costs in constitutional petitions

Holding

Costs awarded to the successful 1st respondent despite the access-to-court considerations in the Mutunga Rules

Reasoning

Under rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, costs are discretionary and must promote access to court. Guided by Jasbir Singh Rai and Anode, the court held that costs follow the event and that an award against a petitioner who could have avoided the litigation would not hinder access to court.

p. 5

Legal principles established

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  • Registered freehold land is private land under Article 64 and its proprietor enjoys full constitutional and statutory protection of the right to property
  • A registered proprietor holding a freehold title may use, sell or lease the land as permitted by the applicable instrument, here the trust deed
  • The award of costs is discretionary and must be exercised so as not to unduly bar access to court; costs follow the event unless reasons are given

Court orders

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  1. 1.Petition dismissed
  2. 2.Costs awarded to the 1st respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 62(4), 64, 67(1)
  • Land Registration ActSections 24 and 25
  • Registered Land Act (now repealed)
  • Registration of Titles Act, Cap. 281 (now repealed)Section 23(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 26
  • Civil Procedure Act

Cases cited (3)

  • Joseph N.K. Arap Ng'ok v Moijo Ole Keiwua & 4 others
    [1997] eKLR
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    [2014] eKLR
  • Joseph Oduor Anode vs. Kenya Red Cross Society
    [2012] eKLR
Jurisdiction invoked
Article 62(4) of the Constitution (petition on alleged unlawful disposal of public land)

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, "Trusted Society of Human Rights Alliance v Mohammed Hussein Mulla Nanji Trust & 2 others [2017] KEELC 3065 (KLR)", Case Analysis (2017). Pet. No. 35 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3065/eng@2017-04-20

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