Kenya Anti-Corruption Commission v Ken Deep Construction Limited & another [2019] KEELC 2124 (KLR)
The bottom line
#Kenya's anti-corruption agency successfully voided a fraudulently allocated railway land lease in Kisumu, but courts will not award fraud damages without proof of criminal wrongdoing.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit land was railway reserve vested in Kenya Railways Corporation
The suit land is a subdivision of Kisumu Municipality/Block 7/365, set apart as railway reserve and vested in Kenya Railways Corporation, alienated without the Corporation's approval or surrender for reallocation
Four witnesses (a Survey of Kenya surveyor, a Kenya Railways surveyor, an investigator and a Land Administration Officer) established through testimonies and documents that the suit land was excised from Block 7/365, formerly L.R. No. 114/1157, railway reserve vested in Kenya Railways Corporation. The excision and allocation were done without the Corporation's approval or consent, and upon discovery, titles were revoked and the land resurveyed and amalgamated into Kisumu Municipality/Block 7/567 registered in the Corporation's name.
Whether the allocation and registration of the suit land was fraudulent, illegal and un-procedural
Yes; the entire transaction allocating the suit land to the 1st Defendant was fraudulent, irregular, illegal and un-procedural, and the title is not protected
The land was already alienated to Kenya Railways Corporation and not un-alienated government land, so the Commissioner of Lands had no power to allocate it. The required approvals (Corporation Board, relevant Ministries), circulation of the Part Development Plan and procedure under the Government Lands Act and Kenya Railways Act were not followed. A diligent check of registry and survey records would have revealed the land was unavailable. Consequently the title is not protected under Article 40(6) of the Constitution and Section 26(1) of the Land Registration Act, and rectification is warranted under Section 80.
Effect of defendants' failure to adduce evidence
The Plaintiff's evidence remains uncontroverted, but the Plaintiff still had to discharge its evidential burden to the required standard, including strict proof of fraud
Relying on Shancebal Limited v County Government of Machakos, the court noted pleadings unsupported by evidence remain mere statements of fact, leaving the plaintiff's evidence unchallenged. However, citing Section 7 of the Evidence Act, CMC Aviation Ltd v Cruisair Ltd (No. 1), Kinyanjui Kamau v George Kamau Njoroge and Ratilal Goudhanbhai Patel v Layi Makanji, the court held fraud must be strictly proved to a standard above mere balance of probabilities. The Plaintiff's evidence met that threshold on the alienation but not on damages for fraud.
Legal principles established
#- Allegations of fraud must be strictly proved; the standard is more than a mere balance of probabilities but less than beyond reasonable doubt
- Pleadings are not evidence; averments must be proved before a court can found a decision upon them
- Failure by a defendant to adduce evidence leaves the plaintiff's evidence uncontroverted, but does not relieve the plaintiff of its evidential burden
- A title procured through a fraudulent and un-procedural alienation of land already vested in a public body 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), (d), (f) and (g) of the Amended plaint dated the 21st January 2010
- 2.Declaration that the issuance of the lease by the 2nd Defendant to the 1st Defendant over Kisumu Municipality/Block 7/455 was null and void ab initio
- 3.Declaration that the registration of the lease and issuance of the Certificate of Lease to the 1st Defendant was null and void
- 4.Rectification of the land register by cancellation of the lease over Kisumu Municipality/Block 7/455 and the Certificate of Lease issued to the 1st Defendant so as to restore the suit property to the Corporation
- 5.Permanent injunction restraining the 1st Defendant, its agents, servants or assigns from dealing with Kisumu Municipality/Block 7/455
- 6.Costs of and incidental to the suit to the Plaintiff
- 7.Interest on costs at court rates
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act); suit transferred from the High Court (formerly HCCC No. 95 of 2009)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Saleem Ghalia, Wahida Ghalia & Mohammed Ayub Mussa Khamisa (Suing as Administrators of the Estate of Sadiq Ghalia (Deceased)) v Kwale District Land Registrar & 5 Others[2026] KEELC 6168 (KLR)23 Sept 2026
- Kenya Anti-Corruption Commission v Zurip Properties Ldt & another [2019] KEELC 1833 (KLR)[2019] KEELC 1833 (KLR)5 Sept 2019followed
Cite this brief
#Cite this brief
Caselaw, "Kenya Anti-Corruption Commission v Ken Deep Construction Limited & another [2019] KEELC 2124 (KLR)", Case Analysis (2019). ELC Case No. 686 of 2015 (Formerly HCCC No. 95 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2124/eng@2019-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.