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ELCPartially Allowed· [2018] KEELC 3373 (KLR)

Moses Kiptoo Rono & another v Chief Land Registrar & 5 others [2018] KEELC 3373 (KLR)

Environment and Land Court of Kenya
20 April 2018
OMOmbwayo
3,695 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret court quashed the cancellation of the landowners' leases because government officials cancelled their titles without giving them a hearing first.

What this practically means

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Executive summary

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The petitioners, Moses Kiptoo Rono and Kevin Keneth Okwara, challenged attempts by state land officials to cancel their Certificates of Lease over Eldoret Municipality/Block 9/3116 and 9/3115, subdivisions of the mother title Block 9/2810 which they purchased from Rehema Koriomat Investment Limited after conducting due diligence and an official search in 2006. They learnt in 2015 that the 1st Respondent intended to declare their titles null and void ab initio and to allocate the land afresh to the 6th Respondent, Ben Muneria Wesonga, who claimed allocation of unsurveyed commercial plots by retired President Moi in 1992. The Registry Index Map was amended to create new parcels 3338 and 3339 superimposed on the petitioners' parcels, without notice or hearing. The court framed the issues as whether the petitioners were heard before the new parcels were created, and whether the 1st Respondent violated their rights under Articles 40, 47 and 50. Applying Article 40, the court held that deprivation of property requires a hearing; that administrative action must be procedurally fair with written reasons under Article 47; and that the petitioners held registered, indefeasible titles not shown to be unlawfully acquired. The creation of parcels 3338 and 3339 was declared a nullity. The court granted declarations of the petitioners' ownership and orders of certiorari quashing the cancellation of their leases, the amendments to the Registry Index Map, and any title issued to the 6th Respondent. Costs were awarded against the 1st to 5th respondents, with no orders against the 6th respondent. Relief sought by way of mandamus, surrender of documents and permanent injunction was not expressly granted in the final orders.

Key legal issues

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01

Right to be heard before creation of new land parcels

Holding

The creation of parcels 3338 and 3339 without affording the petitioners a hearing was unfair, contrary to Article 40(6), and a nullity

Reasoning

The court found that parcels 3338 and 3339 were irregularly superimposed on parcels 3118 and 3126 without affording the petitioners a hearing. Article 40(6) presupposes a hearing before depriving a person of land; unilateral cancellation and creation of new titles without hearing violated the Constitution and rendered the process a nullity.

p. 4
02

Violation of fair administrative action under Article 47

Holding

The 1st Respondent failed to give the petitioners a hearing or written reasons as required by Article 47 and the Fair Administrative Action Act, 2015

Reasoning

Article 47 guarantees administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, and requires written reasons where rights are adversely affected. The respondents did not give the petitioners a hearing or written reasons before cancelling their titles, contravening the principle of fair administrative action and the Fair Administrative Action Act, 2015.

p. 5
03

Protection of property rights of a registered proprietor

Holding

The petitioners hold registered titles not shown to be unlawfully acquired, which were nullified without due process, contrary to Article 40

Reasoning

To enforce Article 40 rights a party must show proprietary interest and indefeasible title. The petitioners were registered proprietors of parcels 9/3116 and 9/3115, having purchased from the registered proprietor after due diligence and search. Their titles had not been found unlawfully acquired yet were nullified without hearing, an act of unlawful deprivation of an interest in property.

p. 5

Legal principles established

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  • Before a person is deprived of land under Article 40(6), there must be a hearing
  • A party enforcing Article 40 rights must demonstrate a proprietary interest and indefeasible title
  • Administrative action affecting a person's rights requires a hearing or written reasons

Court orders

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  1. 1.Declaration that the petitioners are the registered owners of a leasehold interest over land parcel ELDORET MUNICIPALITY/BLOCK 9/3116 and Eldoret Municipality/Block 9/3115
  2. 2.Order of Certiorari to quash the decision of the 1st Respondent to cancel the Lease and Certificates of Lease for land parcel ELDORET MUNICIPALITY/BLOCK 9/2810 and the decision to issue leases for that parcel to the 6th Respondent and alter the records in favour of the 6th Respondent
  3. 3.Order of Certiorari to quash the amendment of the Registry Index Map for land parcel ELDORET MUNICIPALITY/BLOCK 9/2810 by the 3rd Respondent in favour of the 6th Respondent
  4. 4.Order of Certiorari to quash any title issued to the 6th Respondent over Eldoret Municipality/Block 9/2810 or any other title number affecting the petitioners' interest
  5. 5.Costs of the petition to be borne by the 1st to 5th respondents; no orders as to costs against the 6th respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 65
  • Constitution of Kenya, 2010Article 27(4)
  • Fair Administrative Action Act2015

Cases cited (1)

  • Joseph Ihugo Mwaura and 82 others vs Attorney General
    Petition No. 498 of 2009
Jurisdiction invoked
Articles 10, 40, 47 and 50 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Moses Kiptoo Rono & another v Chief Land Registrar & 5 others [2018] KEELC 3373 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3373/eng@2018-04-20

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