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ELCPartially Allowed· [2017] KEELC 3275 (KLR)

Abdi Adan Hussein & 2 others v Attorney General & 2 others [2017] KEELC 3275 (KLR)

Environment and Land Court of Kenya
1 March 2017
AOA. Ombwayo
6,636 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that buyers at a properly advertised auction own the land outright, and government bodies occupying it are trespassers.

What this practically means

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Executive summary

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The plaintiffs, registered proprietors of Eldoret Municipality Block 15/2089 (2.0 Ha), which they acquired as highest bidders at a public auction on 19 December 2007 held by Kenya Commercial Bank in exercise of its statutory power of sale over a charge granted by Leberio Farm Limited, sued the Attorney General, the Commandant of the National Youth Service (NYS) and KCB seeking declarations of bona fide purchase and ownership, a declaration of trespass, orders for access and eviction, general damages and mesne profits. The defendants contended the land was government property allocated to NYS and alleged the original allocation to Leberio Farm was fraudulent and void. The court framed three issues: legality of the allocation to Leberio Farm; whether the plaintiffs were innocent purchasers for value without notice; and whether NYS had a legitimate interest in the property. The court found that Leberio Farm held a valid certificate of lease, that the land had ceased to be unalienated government land by the time of the NYS allotment, and that the defendants failed to prove fraud or illegality. The plaintiffs, having bought at a properly advertised auction, were bona fide purchasers without notice, with no duty to inquire into the mortgagee's right to sell. NYS was held legitimately entitled only to 3.9 hectares, not the disputed parcel, making it a trespasser. Judgment was granted for the plaintiffs with declarations, an order for access and eviction, and costs plus interest; general damages and mesne profits were refused as unproved. Judgment delivered at Eldoret on 1 March 2017 by A. Ombwayo, Judge.

Key legal issues

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01

Validity of the title issued to Leberio Farm Limited and the legality of its allocation

Holding

Leberio Farm Ltd held a valid certificate of lease; the defendants failed to prove fraud or illegality in its registration, and the land was not unalienated government land

Reasoning

The green card showed the register opened on 3.12.1997 with Leberio Farm Limited as lessee for 99 years. The genesis was an allotment letter to Naruna Enterprises Limited, but no evidence showed how Leberio Farm came to be registered. The defendants alleged fraud but never enjoined Leberio Farm, and produced no evidence of fraud or illegality in the issuance of the certificate of lease. The land had ceased to be unalienated government land by 8.3.2007 when the NYS allotment was issued.

p. 7
02

Whether the plaintiffs were innocent purchasers for value without notice of any fraud or misrepresentation

Holding

Yes - the plaintiffs bought at a properly advertised public auction in exercise of the chargee's statutory power of sale and were protected as bona fide purchasers

Reasoning

The plaintiffs saw the advertisement by Wagly Auctioneers, attended the auction, became highest bidders at Kshs 2,500,000, paid the deposit and balance, and were registered. The defendants did not prove any fraud or any irregular exercise of the statutory power of sale of which the purchasers had notice, so the protection accorded to auction purchasers applies.

p. 9
03

Whether the 2nd defendant (NYS) has a legitimate interest in the suit property

Holding

The NYS was legitimately allocated 3.9 hectares, but not the disputed parcel of 2.0 hectares; it is a trespasser on the plaintiffs' land

Reasoning

The first allotment letter of 8.3.2007 for 6.3 hectares was cancelled and replaced by one of 9.9.2008 reducing the allocation to 3.9 hectares, omitting the plaintiffs' parcel. The land allocated to NYS did not include the disputed parcel, which was already private land. The defendants were attempting to circumvent the law by alienating already-alienated land.

p. 10

Legal principles established

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  • Where one intends to impeach title on the ground of fraud or misrepresentation, one must prove the title holder was party to the fraud; where the challenge is that title was acquired illegally, unprocedurally or through a corrupt scheme, it suffices to prove the illegality, fraud or corruption
  • There is no legal duty on an intending purchaser at a properly advertised auction sale to inquire into the rights of the mortgagee to sell
  • Land that has been alienated and registered in the name of a private person ceases to be unalienated Government land and is not available for allocation

Court orders

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  1. 1.Declaration that the Plaintiffs are bonafide purchasers for value without notice of any defect of the suit land
  2. 2.Declaration that the plaintiffs are the registered owners of land parcel number ELDORET MUNICIPALITY BLOCK 15/2089 and that any allotment after registration was null and void ab initio
  3. 3.Declaration that the 2nd Defendant and/or officers from the National Youth Service are trespassers on the Plaintiff's land parcel number ELDORET MUNICIPALITY BLOCK 15/2089
  4. 4.Order directing the Defendants and/or any officer subordinate to them to immediately give the Plaintiffs unhindered access in and out of the Plaintiff's land and to vacate from the said land parcel or be evicted therefrom under the supervision and direction of the Commissioner of Police or any officer subordinate to him
  5. 5.Costs of the suit plus interest awarded to the plaintiffs

Authorities

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Legislation

  • Land Registration ActSections 24(b), 25(1), 26(1)
  • Registered Land Act (Cap 300) (repealed)Sections 27, 28, 30
  • Government Lands Act (Cap 280)Sections 2, 3
  • Indian Transfer of Property ActSection 69(B)
  • Physical Planning ActNot specified

Cases cited (5)

  • Nairobi Permanent Markets Society & 11 Others v Salima Enterprises & 2 Others
    Court of Appeal No. 185 of 1997
  • Joseph Arap Ng'ok v Maijo Ole Keiwa & Others
    1997 eKLR
  • Captain Patrick Kanyagia and Another v Damaris Wangeci and others
    NBI Civil Appeal No. 150 of 1993 (unreported)
  • David Katana Ngomba v Shafi Grewal Kaka
    [2014] eKLR
  • Priscilla Krobought Grant v Kenya Commercial Finance Company Ltd and others
    Civil Appeal No. 227 of 1995 (unreported)
Jurisdiction invoked
Original civil jurisdiction of the High Court/Environment and Land Court over land title and trespass (judgment does not state a specific constitutional provision)

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, "Abdi Adan Hussein & 2 others v Attorney General & 2 others [2017] KEELC 3275 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3275/eng@2017-03-01

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