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ELCDismissedE.L.C. Petition No. 1 of 2017· [2018] KEELC 1501 (KLR)

Ankhan Holdings Limited v Kenya Forest Service & another [2018] KEELC 1501 (KLR)

Environment and Land Court
1 October 2018
KBK. BOR
2,372 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a landowner's bid to validate its title because it had already sold the land, leaving the new owner to fight the battle.

What this practically means

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Executive summary

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The Petitioner sought a declaration that L.R. No. 18486, Ngong Road was not part of Ngong Road Gazetted Forest, a declaration that its title issued on 10/3/1994 was lawfully issued, certiorari to quash the Respondent's letter of 28/11/2016 claiming the property formed part of the gazetted forest, and prohibition against interference with the property. The Petitioner had applied for allotment in 1992/1993; the Director of Forestry surrendered the land, the Commissioner of Lands issued an allotment letter, a draft gazette notice for de-gazettement was prepared, and a 99-year lease title was issued on 10/3/1994 - although the gazette notice was never published. The Respondent opposed, contending the land remains gazetted forest, never de-gazetted, and that the Petitioner lacked locus standi having transferred the property. The court found on the face of the certificate of title that the land had been transferred to the Board of Trustees NSSF for Kshs. 70 Million on 16/5/1994, making NSSF the absolute and indefeasible registered proprietor under the repealed Registration of Titles Act and the Land Registration Act. Since NSSF was not a party, the court held it would be unfair to make orders affecting it without a hearing. The petition was dismissed with costs to the Respondent.

Key legal issues

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01

Locus standi of the Petitioner

Holding

The court found the suit land was transferred to NSSF, which is the registered proprietor and not a party; the court could not make orders affecting it.

Reasoning

The certificate of title showed the land was first registered in the Petitioner's name but was transferred to the Board of Trustees NSSF for Kshs. 70 Million on 16/5/1994. Under Section 23 of the Registration of Titles Act (repealed) the certificate is conclusive evidence of the proprietor's ownership. Under Sections 24 and 26 of the Land Registration Act, the rights of suit to enforce the proprietor's interest vest in the registered proprietor. Since NSSF is not a party, the court could not fairly make orders affecting it without hearing it.

p. 3
02

Indefeasibility of title

Holding

The registered proprietor is the absolute and indefeasible owner, subject to challenge on fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme.

Reasoning

The court applied Section 23 of the repealed Registration of Titles Act and Sections 24 and 26 of the Land Registration Act, which make the certificate of title prima facie evidence of absolute and indefeasible ownership, subject to encumbrances and to challenge on grounds of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme.

p. 3

Legal principles established

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  • A certificate of title under the repealed Registration of Titles Act is conclusive evidence of ownership subject to challenge on grounds of fraud or misrepresentation to which the proprietor is a party.
  • The registered proprietor has the right to bring suits to enforce its interest in the land; that right vests in the proprietor, not the previous owner.
  • A court should not make orders affecting a non-party registered proprietor without affording it an opportunity to be heard.

Court orders

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  1. 1.The petition is dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Registered Titles Act / Registration of Titles ActSection 23
  • Land Registration ActSection 26
  • Land Registration ActSection 24
  • Government Lands Act
  • Forest Act21 days' notice requirement
  • Legal Notice No. 174 of 20/5/1964 (Declaration of Central Forests)
  • Kenya Proclamations, Rules and Regulations of 1932 (Proclamation No. 44 of 1932)
Jurisdiction invoked
Constitution of Kenya, Article 40 property rights invoked; petition under Article 40 seeking certiorari and prohibition

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, "Ankhan Holdings Limited v Kenya Forest Service & another [2018] KEELC 1501 (KLR)", Case Analysis (2018). E.L.C. Petition No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1501/eng@2018-10-01

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