Hezekiah Mavisi Ondengo & 8 others v County Gov. of Vihiga & 2 others [2019] KEELC 702 (KLR)
The bottom line
#A Kenyan court dismissed landowners' constitutional claims because their titles were obtained through fraud after compensation had already been paid with alternative land.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioners held valid and lawful title to the suit land parcels
The titles were invalid, having been obtained through fraud, misrepresentation and an unprocedural/corrupt scheme; the 1st petitioner had already been compensated with alternative land and his interest in the original parcel was extinguished
The court accepted the respondents' evidence that the 1st petitioner agreed in 1998 to vacate South Maragoli/Bugonda/2097 in exchange for Mautuma Central Settlement Scheme/1397, moved out in 2001, and unlawfully re-entered the land in 2013, subdividing it and transferring portions to his children and other petitioners for free. The titles issued in December 2013 flowed from this fraudulent scheme and are defeated by Section 26 of the Land Registration Act and Article 40(6) of the Constitution.
Whether the petitioners' fundamental rights and freedoms (Articles 28, 40, 47) had been infringed
No infringement; the respondents' actions were lawful and the property rights under Article 40 do not extend to unlawfully acquired property
Having found the titles fraudulently obtained, the court held the respondents acted in accordance with the law and did not contradict Sections 2, 2(4), 3, 10, 40 and 47 of the Constitution. Article 40(6) removes protection from unlawfully acquired property, so the petitioners could not invoke property rights, dignity or fair administrative action against lawful measures to recover public land.
Whether the petitioners were entitled to compensation
Not entitled; the 1st petitioner was compensated in 1998 by allocation of alternative land of higher acreage
The court found as a fact that the compulsory acquisition/exchange was concluded long ago: the 1st petitioner accepted Mautuma Central Settlement Scheme/1397 (4 acres) in exchange for the suit land and still retains it. The law providing compensation for compulsory acquisition had therefore already been satisfied, and the compulsory acquisition provisions do not apply to the present dispute.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership but is open to challenge on grounds of fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme (Section 26 of the Land Registration Act)
- Where a registered proprietor's root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership; the proprietor must prove the legality of how he acquired the title
- Article 40(6) of the Constitution denies constitutional protection of property rights to property that has been found to have been unlawfully acquired
- A person compensated with alternative land in a land exchange loses proprietary interest in the original parcel and cannot validly subdivide or transfer it
Court orders
#- 1.The petition dated 14th December 2018 is dismissed in its entirety
- 2.The petitioners shall bear the respondents' costs of the petition
- Jurisdiction invoked
- Article 165(2) of the Constitution (Environment and Land Court) - petition under Article 40, 47 and 28 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hezekiah Mavisi Ondengo & 8 others v County Gov. of Vihiga & 2 others [2019] KEELC 702 (KLR)", Case Analysis (2019). ELC Petition No. 4 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/702/eng@2019-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.