Daniel Mchombo Chai & another v Attorney General & another [2018] KEELC 4728 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed two sons' challenge to their late father's land sale, confirming a registered owner may freely sell land, though family trusts survive registration.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC
The Court has jurisdiction over the land dispute
Article 162(2)(b) requires courts of the status of the High Court to hear disputes relating to title to land; Section 13 of the ELC Act confers original and appellate jurisdiction over such disputes. The dispute over MBWAKA/MAERENI/112 falls squarely within this purview, so the petition is properly before the Court.
Constitutionality of Section 28 of the Registered Land Act (repealed)
Section 28 is not unconstitutional
Section 28, like Section 25 of the Land Registration Act 2012, expressly preserves a proprietor's obligations as trustee; trusts are protected as overriding interests, and Section 143(1) allowed rectification for fraud or mistake. The Petitioners therefore had a remedy, and the Act has since been repealed, making a declaration futile.
Whether the acquisition of the suit property was unconstitutional
The acquisition was lawful and not unconstitutional
The deceased was the registered proprietor with absolute and indefeasible rights and could dispose of the property without the Petitioners' consent. The 3rd Respondent complied with statutory prerequisites including Land Control Board consent, and squatters in occupation were compensated. No evidence proved the deceased was incapacitated or that the Petitioners were in occupation.
Whether the Petitioners' constitutional rights were violated
No violation of the rights to property or compensation was proved
The Petitioners were neither owners nor persons with interests in the land, so there was no duty to consult them. Those in occupation were compensated, and Section 28 did not bar challenge to the title. Having failed to prove infringement of Article 40 rights, no claim for compensation arises.
Entitlement to reliefs
None of the reliefs sought is available
Since the Petitioners failed to prove infringement of their constitutional rights, they are not entitled to any of the declaratory, cancellation, rectification or compensation reliefs sought, and the Petition was dismissed with costs.
Legal principles established
#- Trusts, including customary trusts, survive registration and are not defeated by the indefeasibility provisions of the Registered Land Act/Land Registration Act
- The Environment and Land Court has jurisdiction over disputes relating to title to land under Article 162(2)(b) and Section 13 of the ELC Act
- The court does not issue orders in vain and may refuse remedies overtaken by events
Court orders
#- 1.The Petition is dismissed with costs to the Respondents
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Mchombo Chai & another v Attorney General & another [2018] KEELC 4728 (KLR)", Case Analysis (2018). Petition No. 24 of 2011 (filed 8th April 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4728/eng@2018-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.