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ELCDismissedELC Petition No. 18 of 2018· [2019] KEELC 1253 (KLR)

Godfrey Githinji Kamiri v Attorney General & 4 others [2019] KEELC 1253 (KLR)

Environment and Land Court
24 October 2019
LKL. Komingoi
1,851 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that a clean title certificate cannot save land that was originally grabbed from the public.

What this practically means

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Executive summary

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This was a constitutional petition filed in the Environment and Land Court at Nairobi by Godfrey Githinji Kamiri, the registered proprietor of LR Number 209/13539/79 (IR 81544/1) at Woodley/Joseph Kangethe Estate, which he purchased from the original allottee John Njenga Mungai in 2002 and perfected through a judgment in HCCC 173 of 2003 delivered by Okwengu J on 15th October 2010. The petitioner sought declarations that Nairobi City County and the National Land Commission acted in contempt of permanent injunction orders dated 21st January 2011 by initiating a review and purporting to revoke the grant; a declaration that his Article 40 property rights were violated; aggravated damages; certiorari to quash the NLC proceedings of 15th November 2017 and the Gazette Notice of 17th July 2017; mandamus compelling the County to update its register and the Chief Land Registrar to lift an inhibition; and costs. The respondents, through grounds of opposition and a replying affidavit by the County's Chief Valuer, contended that the suit property was public land, that the original grant was issued unprocedurally and was a nullity, and that the petitioner was not a bona fide purchaser. The court framed three issues: whether the property was public land, whether the petitioner knew so, and whether he was entitled to the reliefs. Relying on Chemey Investment Ltd and Arthi Highway Developers, the court held that Article 40 does not protect unlawfully acquired property and that a purchaser must exercise due diligence. The petition was dismissed with each party bearing own costs.

Key legal issues

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01

Whether the suit property is public land

Holding

The court found the property was public land, the original grant having been issued unprocedurally with no resolution surrendering the land for alienation

Reasoning

The 3rd respondent's Chief Valuer deposed that the manner of allotment and acquisition was fraudulent and in breach of the law. No resolution of the City Council of Nairobi was presented showing surrender of the public land to the Commissioner of Lands for alienation. The original grant IR 81544/1 was therefore a nullity and the subsequent transfer tainted with illegality.

p. 3
02

Whether the petitioner, as alleged bona fide purchaser for value, is entitled to the constitutional protection of Article 40 and the reliefs sought

Holding

The petitioner failed to prove entitlement to the reliefs; Article 40(6) excludes unlawfully acquired property and a purchaser must conduct due diligence

Reasoning

The petitioner should have undertaken due diligence to verify that the original allottee acquired the property legally. Relying on Chemey Investment Ltd, the court held that a purchaser of property in public use without inquiry cannot be an innocent purchaser without notice. The revocation/review by the NLC did not contravene the earlier injunction, which concerned ownership rather than the validity of the original grant.

p. 3

Legal principles established

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  • Article 40's protection of property rights does not extend to title founded on unlawful acquisition
  • A purchaser of land must exercise due diligence to establish that the original allottee acquired the property legally and procedurally

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40; Article 40(6)
  • Registration of Titles ActSections 23 and 60
  • Land Registration ActSection 26(1)
  • National Land Commission Act

Cases cited (10)

  • Shimmers Plaza Limited vs National Bank of Kenya Limited
    [2015] eKLR
  • Argos Furnishers Ltd vs Municipal Council of Mombasa
    [2014] eKLR
  • Sound Equipment Ltd vs Registrar of Titles & Ano.
    [2011] eKLR
  • Satima Enterprises Ltd vs Registrar of Titles & 2 Others
    [2012] eKLR
  • David Peterson Kiengo & 2 Others vs Kariuki Thuo
    [2012] eKLR
  • Chemey Investment Ltd vs AG & 2 Others
    [2018] eKLR
  • Kenya Allied Guards Workers Union vs Security Services & 38 Others
    HC Misc Application 1159 of 2003
  • Mureithi & 2 Others vs AG & 4 Others
    [2006] IKLR (E&L)
  • Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others
    (Supra)
  • Flemish Investments Ltd vs Town Council of Mariakani
    CA No. 30 of 2015
Jurisdiction invoked
Article 40 of the Constitution (constitutional petition under the Environment and Land Court jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Godfrey Githinji Kamiri v Attorney General & 4 others [2019] KEELC 1253 (KLR)", Case Analysis (2019). ELC Petition No. 18 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1253/eng@2019-10-24

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