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ELCDismissedPetition dated 1/12/2014 (Nairobi)· [2018] KEELC 1560 (KLR)

Soroya Investments Limited v Registrar of Titles & 2 others [2018] KEELC 1560 (KLR)

Environment and Land Court
21 September 2018
BEB M Eboso
2,563 words in judgment
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The bottom line

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What this practically means

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Executive summary

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Soroya Investments Limited petitioned the Environment and Land Court challenging Gazette Notice No 1507 of 11th February 2011 by which the Registrar of Titles revoked its leasehold title to LR No 209/12317, approximately 0.1602 hectares in Pangani, Nairobi, on the ground that the parcel was an open space reserved for the Nairobi City Council and its allocation was illegal and unconstitutional. The petitioner sought a declaration that the revocation was unconstitutional, certiorari to quash the Gazette Notice, and in the alternative compensation on a full indemnity basis. The respondents filed no replying affidavit and no submissions-based defence of fact; the court therefore framed a single issue - whether the petitioner was entitled to the reliefs sought. The court held that Article 40(6) withdraws constitutional protection from unlawfully acquired property and placed on the petitioner a mandatory obligation to demonstrate procedural acquisition of what it admitted was public property until 1994. The petitioner led no oral evidence and showed neither how the Grant was procured nor compliance with special conditions, leaving the authenticity of the title unclear. The court, citing the Court of Appeal in Chemey Investment Limited, reiterated that sanctity of title is no vehicle for fraud or unjust enrichment at public expense. Further, the certiorari prayer, a judicial review remedy, was brought about four years after the Gazette Notice, well outside the mandatory six-month period, and was an abuse of process. The petition was dismissed with no order as to costs since the respondents had not responded.

Key legal issues

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01

Whether the petitioner's title over LR No 209/12317 enjoys constitutional protection under Article 40

Holding

No - the petitioner failed to prove lawful, procedural acquisition of what it admits was public property until 1994, so the title does not enjoy Article 40 protection

Reasoning

Article 40(1) and (3) protect property rights, but Article 40(6) withdraws protection from unlawfully acquired property. The petitioner produced only the Grant, no evidence of how the grant was procured or compliance with special conditions, and no receipts for premiums, stamp duty or rent. The burden of explaining the conversion of public land to private title lay on the petitioner and was not discharged.

p. 3
02

Whether the petitioner was entitled to certiorari to quash Gazette Notice No 1507 of 2011

Holding

No - the remedy was statute-barred and the proceeding was an abuse of process

Reasoning

Before the Fair Administrative Action Act 2015, certiorari under Order 53 rule 2 of the Civil Procedure Rules and the Law Reform Act had to be sought within six months. The Gazette Notice issued on 11/2/2011 but the petition was filed about four years later with no explanation. Further, even under the Bill of Rights framework the claim would fail because the petitioner did not explain the conversion of public land into private property.

p. 4

Legal principles established

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  • A party seeking constitutional protection of title over former public property bears a mandatory obligation to demonstrate that the title was procedurally acquired
  • Sanctity of title is not a shield for fraud, illegality or unjust enrichment at public expense
  • Under the pre-2015 framework, certiorari had to be sought within six months of the impugned decision

Court orders

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  1. 1.The petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 40, 47, 22, 23, 40(6)
  • Government Lands Act (Cap 280)
  • Trust Land Act (Cap 288)
  • Registration of Titles Act (repealed)Section 60
  • Land Registration ActSection 79(2)
  • Law Reform ActSections 8 and 9
  • Civil Procedure RulesOrder 53 rule 2
  • Fair Administrative Action Act

Cases cited (14)

  • Republic v Registrar of Titles & Another Exparte David Gachina Muriithi & Another
    [2014] eKLR
  • Eatima Enterprises Ltd v Registrar of Titles & 2 Others
    [2012] eKLR
  • Associated Provincial Picture Houses v Wednesbury Corporation
    (1968) 1 KB 233
  • R v Secretary of State for Education and Science Exparte Avon County Council
    (1991) 1 All ER 282
  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No 233 of 2009; [2013] eKLR
  • Fredrick Mworia v District Land Adjudication Officer Tigania West/East & 3 Others
    (2016) eKLR
  • Chemey Investment Limited v Attorney General & 2 others
  • 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
  • Milan Kumarn Shah & Others v City Council of Nairobi & Others
    HCCC No. 1024 of 2005
Jurisdiction invoked
Articles 22 and 23 of the Constitution (enforcement of Bill of Rights); Environment and Land Court jurisdiction

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, "Soroya Investments Limited v Registrar of Titles & 2 others [2018] KEELC 1560 (KLR)", Case Analysis (2018). Petition dated 1/12/2014 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1560/eng@2018-09-21

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