Sammy Chege Njenga & John Kiplagat Rutto v Commissioner of Prisons, Land Registrar Trans-Nzoia County & Attorney General (? 5 of 2016) [2018] KEELC 772 (KLR)
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
#Key legal issues
#Whether the court can determine the petitioners' Article 40 property rights where the legality of their title is contested
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
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.
Sanctity of title versus fraud and illegality
Sanctity of title is not a vehicle for fraud or illegalities; courts consistently decline to protect illegally or fraudulently obtained title
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Limited v Attorney General & 2 Others, the court adopted the position that although sections 28 and 143 of the repealed Registered Land Act guaranteed sanctity of title, such protection did not extend to titles acquired by fraud or illegality to which the registered proprietor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.
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.The petition dated 18th August 2016 is dismissed
- 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.Each party shall bear their own costs
- 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.