Kenya Anti-Corruption Commission v Zurip Properties Ldt & another [2019] KEELC 1833 (KLR)
The bottom line
#A Kisumu court cancelled a lease over Kenya Railways land allocated fraudulently in 1999, ruling such titles are void from the start.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit property was vested in the Kenya Railways Corporation and unavailable for allocation
The uncontroverted evidence of PW1 to PW3 established that the suit property was part of the land vested in the Kenya Railways Corporation at the time of allocation, and there was no Part Development Plan to anchor the allocation.
The plaintiff's surveyor, investigator and land administrator gave unchallenged evidence that the suit property formed part of land set apart and vested in the Corporation under Legal Notices, and that its 1999 allocation was made without the Corporation's knowledge or consent. No Part Development Plan existed for the property, so the 2nd Defendant had no basis for the allocation and lease.
Whether the 2nd Defendant had power to allocate the suit property
The Commissioner of Lands had no power under Section 3 of the Government Lands Act to allocate land that was not unalienated Government land; the allocation was irregular and outside his official powers.
Section 3 of the Government Lands Act vests the power to alienate unalienated Government land in the President; the delegated power to the Commissioner of Lands was limited to educational, charitable, sports and other specified purposes. None of those exceptions covered this allocation, so the 2nd Defendant acted ultra vires, and his action was fraudulent and irregular.
Whether the 1st Defendant acquired good title
No; the title procured unprocedurally and fraudulently was void ab initio and unprotected under Article 40(6) of the Constitution and Section 26(1) of the Land Registration Act.
Because the allocation was made without the Corporation first surrendering the land and without due process, the lease and certificate of lease issued to the 1st Defendant conferred no good title. Fraudulently and unprocedurally obtained titles fall outside constitutional and statutory protection, and public interest favoured cancellation and reversion of the land to the Corporation.
Whether general damages for fraud were payable
No; the plaintiff did not prove the damages or loss suffered.
Although fraud in the allocation was proved, the plaintiff led no evidence quantifying loss suffered. Damages are a discretionary remedy that must be proved; failure to establish the amount of loss meant no general damages could be awarded despite success on liability.
Legal principles established
#- Land already alienated to a corporation is not unalienated Government land and cannot be allocated by the Commissioner of Lands without the corporation surrendering it in accordance with law.
- A title obtained unprocedurally and fraudulently is void ab initio and is not protected under Article 40(6) of the Constitution and Section 26(1) of the Land Registration Act.
Court orders
#- 1.Judgment entered for the Plaintiff against the Defendants in terms of prayers (a), (b), (c) and (f) only of the plaint dated 22nd June 2009
- 2.A declaration that the issuance of the lease by the 2nd Defendant to the 1st Defendant over Kisumu Municipality/Block 7/522 was null and void ab initio
- 3.A declaration that the registration of the lease and issuance of the certificate of lease over Kisumu Municipality/Block 7/522 was null and void
- 4.Rectification of the land register by cancellation of the lease and certificate of lease so as to restore the suit property to the Corporation
- 5.Costs of the suit to the Plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution and the Environment and Land Court Act (suit concerning title to land Kisumu Municipality/Block 7/522)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Anti-Corruption Commission v Zurip Properties Ldt & another [2019] KEELC 1833 (KLR)", Case Analysis (2019). ELC Case No. 820 of 2015 (Formerly HCCC No. 80 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1833/eng@2019-09-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.