Richard Kimaiyo Kiyeng v County Land Registrar, Elgeyo Marakwet County & another [2018] KEELC 1866 (KLR)
The bottom line
#A Kenyan court ruled the State failed to prove it legally acquired private land in 1989, so the family keeps the title and the restriction must be removed.
What this practically means
#Executive summary
#Key legal issues
#Res subjudice
The principle of res subjudice did not apply because the parties had already been heard on the merits and the respondents were estopped from raising the defence at the judgment stage
The respondents should have raised the issue as a preliminary objection before the hearing commenced, or applied for a stay of proceedings or consolidation, rather than waiting until after the hearing. By that stage there were no proceedings left to stay and both sides had been heard on the merits.
Whether compulsory acquisition of the suit property in 1989 was proved
The respondents failed to prove that the due process of compulsory acquisition under the repealed Land Acquisition Act Cap 295 was followed or that compensation was paid
The Act required preliminary and gazette notices under sections 3, 6 and 7, and compensation under sections 8 to 16; where land was exchanged under section 12(1), the agreement was to be recorded in the award. The respondents produced neither the agreement nor the award, and only produced internal letters between the provincial administration and the Ministry of Lands. Compensation particulars (the alleged Charar scheme resettlement) were not given.
Violation of property rights by the restriction
Entry of the restriction on the register violated section 75 of the repealed Constitution and Article 40 of the 2010 Constitution as it denied the petitioners enjoyment of their property
Having found no evidence that compulsory acquisition was procedurally carried out or compensation made, the petitioners remained the registered proprietors entitled to the indefeasibility protections of the Land Registration Act and to Article 40 protection against arbitrary deprivation of property. The endorsement that all land had been acquired by the Government was therefore illegal and unconstitutional.
Damages
Damages for trespass and wrongful restriction were refused for lack of proof
Although the restriction was found unconstitutional, the petitioners did not adduce evidence demonstrating actual loss attributable to the caveat or restriction, so the heads of damages for trespass and wrongful caveat/restriction failed.
Legal principles established
#- Rights of compulsory acquisition are conferred by specific provisions of the law and those provisions must be complied with for the rights of acquisition to crystallise
- A registered proprietor under the Land Registration Act enjoys indefeasible title challengeable only on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme
- The State bears the burden of proving that compulsory acquisition complied with the Land Acquisition Act, including gazettement of notices, payment of compensation and vesting
Court orders
#- 1.An order of permanent injunction restraining the respondents from trespassing, entering and or evicting the petitioners from the land known as ELGEYO MARAKWET/KAPSOWAR/67
- 2.A declaration that the respondents' action to lodge a restriction on the suit property was illegal, unprocedural and in contravention of the petitioners' rights under article 40 of the constitution
- 3.An order directing the 1st respondent to remove the restriction lodged against the title of the suit property
- 4.Costs of the petition awarded to the petitioners
- Jurisdiction invoked
- Original constitutional petition jurisdiction under Article 40 of the Constitution of Kenya 2010 (pettion for violation of property rights)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Richard Kimaiyo Kiyeng v County Land Registrar, Elgeyo Marakwet County & another [2018] KEELC 1866 (KLR)", Case Analysis (2018). Not stated in judgment (Eldoret Environment and Land Court petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1866/eng@2018-09-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.