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ELCAllowedELC Case No. 12 of 2005· [2019] KEELC 1528 (KLR)

Maurice S. M. Makhanu v County Government of Bungoma [2019] KEELC 1528 (KLR)

Environment and Land Court
9 October 2019
2,772 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a registered Certificate of Lease proves land ownership, and a county government cannot cancel it by letter without a court or a hearing.

What this practically means

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Executive summary

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The plaintiff sued the County Government of Bungoma seeking a permanent injunction restraining interference with his peaceful enjoyment of parcel No. Bungoma Municipality/801, plus costs. He held a letter of allotment dated 10th February 1997, a 99-year lease from 1st March 1997, and a Certificate of Lease dated 1st November 2004 issued under the repealed Registered Land Act. The defendant, which had written on 3rd December 2004 expressing intention to repossess the land, contended the plaintiff was a mere licensee whose licence had been revoked and that the land belonged to it, having been set aside for public purposes and not available for private alienation. The defendant called its Enforcement Officer, David Makokha, as its sole witness. The court found it common ground the plaintiff held a leasehold interest, registered under Section 27(b) of the repealed Act, cancellable only under Section 143(1) for fraud or mistake. There was no counter-claim seeking cancellation, and no evidence that the land was trust land set apart under Section 13 of the Trust Land Act or featured in the unproduced Ndungu report; the court could not act on conjecture given Section 109 of the Evidence Act. The defendant's 2008 council minutes acknowledged the plaintiff's proprietary rights and resolved to offer him an alternative plot for a community library. The court distinguished the KENHA v Mughal decision. The letter of 26th August 2015 cancelling the lease without a hearing violated Article 47(1) of the Constitution, Section 4 of the Fair Administrative Actions Act, and natural justice, citing Oloo v A-G. Judgment was entered for the plaintiff with a permanent injunction and costs.

Key legal issues

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01

Validity and protection of the plaintiff's registered leasehold title

Holding

The plaintiff's Certificate of Lease under the repealed Registered Land Act conferred the leasehold interest and could only be cancelled under Section 143(1) for fraud or mistake; no counter-claim sought cancellation and no evidence of fraud was led.

Reasoning

The plaintiff produced a letter of allotment dated 10th February 1997, the lease document, and a Certificate of Lease dated 1st November 2004 for 99 years from 1st March 1997. The defendant led no evidence that the land was trust land set apart under Section 13 of the Trust Land Act, and the 2008 council minutes acknowledged the plaintiff's proprietary rights. A court cannot act on conjecture; the burden of proof lay on the defendant.

p. 2
02

Whether the repossession without a hearing violated the plaintiff's rights

Holding

The defendant's letter of 26th August 2015 cancelling the plaintiff's lease without affording him a hearing violated Article 47(1) of the Constitution, Section 4 of the Fair Administrative Actions Act, and the rules of natural justice.

Reasoning

The court held that even before the 2010 Constitution, natural justice required the plaintiff be heard before adverse administrative action. The defendant had in 2008 agreed to offer an alternative plot, so it could not turn around in 2015 and repossess the land on the basis the lease was irregularly obtained. Only a court may cancel a registered lease under Section 143(1) of the repealed Registered Land Act or Section 80(1) of the Land Registration Act.

p. 3
03

Reliance on the KENHA v Mughal decision on public-purpose land

Holding

The Mughal decision was distinguished because there was no evidence that the suit land had been set aside for public purposes and was unavailable for alienation.

Reasoning

The court noted there was no counter-claim seeking to cancel the plaintiff's title and no evidence that he acquired the leasehold through fraud or illegal means. The Ndungu report was mentioned in cross-examination but never produced, so the court had no evidence that the suit land was among illegally acquired properties. Baptist School moved onto the land long after allocation to the plaintiff.

p. 3

Legal principles established

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  • A Certificate of Lease is conclusive proof of ownership until cancelled by a court; a lease cannot be cancelled by a mere letter.
  • A party asserting that land was set aside for public purposes bears the burden of proving it.

Court orders

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  1. 1.An order of permanent injunction restraining the defendant, its agents, employees, assigns or any person acting through them from interfering with the plaintiff's peaceful enjoyment of land parcel No. Bungoma Municipality/801
  2. 2.The plaintiff is awarded costs of this suit

Authorities

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Legislation

  • Registered Land Act (repealed)Section 27(b)
  • Registered Land Act (repealed)Section 143(1)
  • Trust Land ActSection 13
  • Evidence ActSection 109
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47(1)
  • Fair Administrative Actions ActSection 4
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 80(1)
  • Local Government Actnull

Cases cited (2)

  • KENYA NATIONAL HIGHWAY AUTHORITY V SHALIEN MASOOD MUGHAL & OTHERS
    C.A Civil Appeal No. 327 of 2014 [2017 eKLR]
  • OLOO V. A-G
    1986 - 1989 E.A 456
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Maurice S. M. Makhanu v County Government of Bungoma [2019] KEELC 1528 (KLR)", Case Analysis (2019). ELC Case No. 12 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1528/eng@2019-10-09

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