Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedPetition dated 18/8/2016 (filed 25/8/2016)· [2018] KEELC 772 (KLR)

Sammy Chege Njenga & John Kiplagat Rutto v Commissioner of Prisons, Land Registrar Trans-Nzoia County & Attorney General (? 5 of 2016) [2018] KEELC 772 (KLR)

Environment and Land Court
19 November 2018
2,585 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a landowner's constitutional petition because contested titles must be challenged through a normal civil suit, not a rights-based petition.

What this practically means

#

Executive summary

#
The petitioners, registered proprietors of LR. No. 2116/1059 in Kitale since the issuance of a Certificate of Title, petitioned for declarations that their constitutional rights, including the right to property under Article 40(1), had been violated by the respondents' forceful prevention of their access to the land, and for a permanent injunction against the respondents. The petitioners alleged the land was allocated to them in 1998 by the Municipal Council of Kitale for construction of a hospital. The respondents filed a response and cross-petition, contending that the suit land formed part of the Kitale Prison Farm gazetted in 1943 vide Gazette Notice 359, that the allocation was irregular, fraudulent and unlawful, and sought cancellation of the petitioners' titles and a permanent injunction against them. The court, relying on the Court of Appeal's decision in Chemey Investment Limited and Shimoni Resort, held that sanctity of title does not protect titles obtained by fraud or illegality, and that where the legality of a title is disputed - as it was here, given the pleaded fraud and malfeasance by registration officers - a constitutional petition is not the appropriate avenue for determination. The court declined to make any findings on the alleged rights violations or on the cross-petition, dismissed the petition, and directed that any party wishing to pursue the title question file a suit by way of plaint within 180 days. Because malfeasance was alleged against officers instrumental in issuing the title, each party was ordered to bear its own costs.

Key legal issues

#
01

Whether the court can determine the petitioners' Article 40 property rights where the legality of their title is contested

Holding

The court declined to issue any declarations on violation of rights because the title is under dispute; declarations could only issue if ownership were firmly established or agreed

Reasoning

The respondents pleaded fraud, illegality and malfeasance by the land registration officer and surveyor in the acquisition of the title. This transformed the matter from a rights violation petition into a dispute over the legality of title. Disputed fraud allegations require oral testimony tested by cross-examination, which a petition is not suited for. The court therefore held that only declarations related to rights violations where good title is established fall within its proper remit, and directed the parties to a plaint.

p. 3
02

Sanctity of title versus fraud and illegality

Holding

Sanctity of title is not a vehicle for fraud or illegalities; courts consistently decline to protect illegally or fraudulently obtained title

Reasoning

Relying on the Court of Appeal decision in Chemey Investment Limited v Attorney General & 2 Others, the court adopted the position that although sections 28 and 143 of the repealed Registered Land Act guaranteed sanctity of title, such protection did not extend to titles acquired by fraud or illegality to which the registered proprietor was party. This principle informed the court's view that the competing claims of indefeasibility and fraud could not be resolved on the petition as pleaded.

p. 3

Legal principles established

#
  • Title to property obtained fraudulently or illegally is not sacrosanct and does not enjoy the protection of the law
  • A constitutional petition is not the appropriate mode of seeking orders where there is a dispute regarding the legality of title; such a claim must be brought in a suit begun by way of plaint

Court orders

#
  1. 1.The petition dated 18th August 2016 is dismissed
  2. 2.The petitioners may, if they so desire, file a suit by way of plaint within 180 days in respect of the said title for the court's determination
  3. 3.Each party shall bear their own costs

Authorities

#

Legislation

  • Constitution of Kenya 2010Articles 2, 10, 12, 21, 22, 23, 24, 40, 47, 48, 50(1), 60(b), 62(4), 64, 67
  • Prisons Actunspecified
  • Government Land ActCap 280 (Repealed)
  • Physical Planning Actunspecified
  • Surveys Actunspecified
  • Public Officers' Ethics Act2013
  • Registered Land ActSections 27, 28, 143(1), 143(2) (Repealed)

Cases cited (11)

  • Chemey Investment Limited v Attorney General & 2 Others
    [2018] eKLR
  • Denis Noel Mukhulo & Another v Elizabeth Murungari Njoroge & Another
    CA No. 298 of 2013
  • Niaz Mohamed Jan Mohamed v. Commissioner for Lands & 4 Others
    [1996] eKLR
  • Funzi Island Development Ltd & 2 Others v. County Council of Kwale
  • Republic v. Minister for Transport & Communications & 5 Others ex parte Waa Ship Garbage Collectors & 15 Others
    KLR (E&L) 1, 563
  • John Peter Mureithi & 2 Others v. Attorney General & 4 Others
    [2006] eKLR
  • Kenya National Highway Authority v. Shalien Masood Mughal & 5 Others
    (2017) eKLR
  • Arthi Highway Developers Limited v. West End Butchery Limited & 6 Others
    [2015] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Milan Kumarn Shah & Others v. City Council of Nairobi & Others
    HCCC No. 1024 of 2005
  • Shimoni Resort v Registrar of Titles & 5 Others
    [2016] eKLR
Jurisdiction invoked
Article 22, 23 and 40 of the Constitution of Kenya 2010 (constitutional petition)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Sammy Chege Njenga & John Kiplagat Rutto v Commissioner of Prisons, Land Registrar Trans-Nzoia County & Attorney General (? 5 of 2016) [2018] KEELC 772 (KLR)", Case Analysis (2018). Petition dated 18/8/2016 (filed 25/8/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/772/eng@2018-11-19

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