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ELCDismissedELC Case No 96 of 2017· [2018] KEELC 2260 (KLR)

Daniel Maina Kibage (Duly Registered Attorney of Gabriel Githaiga v Kenya Forest Service [2018] KEELC 2260 (KLR)

Environment and Land Court
31 July 2018
MOM.C. Oundo
5,392 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a landowner's claim because his title was fraudulently carved out of gazetted forest land.

What this practically means

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Executive summary

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The plaintiff, initially suing through his attorney Daniel Maina Kibage (later deceased, whereupon Gabriel Githaiga proceeded himself), claimed to be the registered proprietor of L.R Nyandarua/Muruai/926, acquired through allotment by the Settlement Fund Trustee in 1999, with a title issued on 10th November 2009. He sought a declaration of ownership and exclusive use against the Kenya Forest Service, which had occupied and prevented his use of the land since 2011. The defendant's evidence showed that in 1979, under an exchange program, the Settlement Fund Trustee ceded parcels Nyandarua/Muruai 96 and Nyandarua/Kirima 298 to the forest department; boundary plans were authenticated and Gazette Notice No 3600 of 30th July 1993 published the intention to declare the area a forest, attracting no objections. The court framed three issues: whether there was an allotment, whether the land was capable of being allotted, and whether the plaintiff was entitled to the reliefs sought. It found that at the date of the 1999 offer the land was already mapped as forest and unavailable for allocation, so the Settlement Fund Trustee had no good title to transfer; the title was obtained illegally, un-procedurally and through a corrupt scheme, and its resurrection was fraudulent. Applying Section 26(1) of the Land Registration Act, the Munyu Maina decision and the principle that fraud unravels everything, the court held Article 40 does not protect unlawfully acquired property. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Whether the suit land was capable of being allotted by the Settlement Fund Trustee

Holding

The land was not available for allocation as it had been set aside for forest purposes; the Settlement Fund Trustee had no good title to transfer

Reasoning

The evidence showed that on 23rd November 1979 the Settlement Fund Trustee ceded parcels Nyandarua/Muruai 96 and Nyandarua/Kirima 298 to the forest department under an exchange program. Boundary plans were authenticated and registered, and Gazette Notice No 3600 of 30th July 1993 published the intention to declare the area a forest, with no objections within 28 days. Consequently, when the letter of offer issued on 14th April 1999, the land had already been mapped out as forest area and was not available for lawful creation of the suit parcel.

p. 6
02

Whether the Plaintiff's title was protected under the Land Registration Act despite his registered status

Holding

The title was impeachable under Section 26(1)(b) because it was obtained illegally, un-procedurally and through a corrupt scheme, and its resurrection was fraudulent

Reasoning

While the Plaintiff was indisputably the registered proprietor, the court held that Section 26(1) of the Land Registration Act permits challenge where a certificate of title was acquired illegally, un-procedurally or through a corrupt scheme. Reviving a title over land that had ceased to exist as an independent title upon the gazettement as forest was fraudulent. Relying on the Munyu Maina case, the registered proprietor had to prove legality of acquisition beyond the instrument of title, which he failed to do.

p. 7
03

Whether the Plaintiff is entitled to the reliefs sought

Holding

The Plaintiff failed to prove his case on a balance of probability and the suit was dismissed

Reasoning

Having found the land reserved as forest and the allocation unlawful, the court held that the Plaintiff could not claim exclusive use against the Defendant, nor restoration or compensation, since Article 40 does not protect unlawfully acquired property. The claim could, if at all, lie against the Settlement Fund Trustee, not the Defendant.

p. 7

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, but may be challenged on the ground of fraud or misrepresentation to which the proprietor is a party, or where it was acquired illegally, un-procedurally or through a corrupt scheme
  • Where a registered proprietor's root of title is under challenge, the proprietor must go beyond the instrument of title and prove the legality of the acquisition
  • Fraud vitiates judgments, contracts and all transactions whatsoever
  • Article 40 of the Constitution does not protect property found to have been unlawfully acquired

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the Defendant

Authorities

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Legislation

  • Registered Land Act (repealed)Section 27(a)
  • Registered Land Act (repealed)Section 28
  • Land Registration ActSection 26(1)
  • Land Act
  • Forest Act Cap 385Section 4
  • Forest Conservation and Management ActNo. 34 of 2016
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 62(1)(c)
  • Constitution of Kenya, 2010Article 69(1)

Cases cited (2)

  • Munyu Maina vs. Hiram Gathiha Maina
    [2013] eKLR
  • Lazarus Estates Limited vs. Beasley
    (1956) 1 ALL ER 341
Jurisdiction invoked
Environment and Land Court, Land and Environment Court Act / Article 162(2)(b) (original jurisdiction over land); suit originally filed at the High Court at Nakuru as Civil Suit No 102 of 2012 and transferred to this court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Daniel Maina Kibage (Duly Registered Attorney of Gabriel Githaiga v Kenya Forest Service [2018] KEELC 2260 (KLR)", Case Analysis (2018). ELC Case No 96 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2260/eng@2018-07-31

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