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ELCPartially Allowed· [2019] KEELC 2354 (KLR)

Kisekem Ltd v Michael Kipkering Cherwon & 3 others [2019] KEELC 2354 (KLR)

Environment and Land Court of Kenya
18 July 2019
AOA. Ombwayo
4,728 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that the government cannot re-plan or re-survey private land without the owner's consent or due process.

What this practically means

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Executive summary

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Kisekem Ltd, registered lessee from 4.11.1985 of Eldoret Municipality Block 6/231, sued Michael Kipkering Cherwon, the Commissioner of Lands, the Chief Lands Registrar and the Attorney General, alleging that Block 6/306, registered to the 1st defendant in 1991/1992, was unlawfully superimposed on its parcel. It sought declarations of proprietorship, nullity of the 1st defendant's lease, orders revoking the lease and cancelling the registration, a permanent injunction, and general damages for trespass. The 1st defendant raised preliminary objections (limitation, res judicata, lack of legal capacity) and asserted he was first registered proprietor in exclusive possession. The State surveyor (PW2) confirmed parcels 301, 302 and 306 overlapped parcel 231 without subdivision or the owner's consent; a later State surveyor contradicted him, attributing the change to re-planning for non-development. The court held that once parcel 231 was registered, it became private land unavailable for re-survey, and re-planning of private property is unknown to Kenyan law; the exercise was an affront to the rule of law and legitimate expectation and a nullity. Limitation and res judicata objections failed; the certificate of incorporation was preferred over the Registrar of Companies' unreliable evidence. The court declared the plaintiff proprietor, declared the 1st defendant's lease null and void ab initio, ordered its revocation and cancellation of registration, granted a permanent injunction and awarded costs to the plaintiff. General damages for trespass were not granted.

Key legal issues

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01

Legality of the re-planning and re-survey of registered parcel 6/231

Holding

The re-planning, re-survey and extinguishment of parcel 6/231 was unprocedural, illegal and a nullity; parcels 301, 302 and 306 created over it were a mistake

Reasoning

Parcel 231 was registered under the RTA in the name of Kisekem Ltd and thus became private land, unavailable for re-survey. The Commissioner's reliance on special condition No. 2 of the lease could not dispense with due process; forfeiture/re-entry under section 77(1) GLA (in pari materia with section 31(1) of the Land Act) required notice and court action. No subdivision application or owner's consent existed. The State's own surveyor (PW2, whose evidence the AG adopted) confirmed the overlaps; the contradicting State surveyor's re-planning theory was unsupported by law.

p. 5
02

Limitation and leave to file suit out of time

Holding

The extension of time was properly granted under sections 27 and 28 of the Limitation of Actions Act; the claim was based on mistake, so leave was properly obtained

Reasoning

The court had already heard the plaintiff and granted extension of time for ignorance of material facts. The claim sounded in tort (mistake). The defendants did not seriously demonstrate that leave was improperly obtained.

p. 5
03

Res judicata

Holding

The plea of res judicata failed because it was not demonstrated that the earlier matter had been fully determined

Reasoning

The defendants pleaded res judicata citing Eldoret CMCC No. 1082 of 2004 and a pending appeal, but adduced no evidence showing the matter had been fully and finally determined as the doctrine requires.

p. 5
04

Legal existence of Kisekem Ltd at the time of allocation

Holding

The certificate of incorporation speaks for itself; the plaintiff was validly registered and DW1's contrary evidence was unreliable

Reasoning

DW1, an Assistant Registrar of Companies, produced the register showing C25562 as Pew Lex Palkers Ltd (8.4.1983) and Kisekem Ltd as No. 39265 (24.1.1989). However, he did not produce the plaintiff's file, did not investigate how the certificate of incorporation was issued, admitted mistakes occur in the office, and the certificate carried an imprinted name of the Registrar. The court preferred the certificate.

p. 5

Legal principles established

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  • Once land is registered in a proprietor's name it becomes private land and is not available for re-survey or re-planning; re-planning of private property is not supported by any law in Kenya
  • Re-entry/forfeiture powers over a registered lease may only be exercised after notice and due process; their exercise without a hearing is an affront to the rule of law and legitimate expectation

Court orders

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  1. 1.Declaration that the plaintiff is the proprietor as lessee from the Government of Kenya over Eldoret Municipality Block 6/231 and is entitled to immediate possession and use thereof to the exclusion of the 1st defendant or anybody else
  2. 2.Declaration that the lease issued and the certificate extracted therefrom in favour of the 1st defendant over Eldoret Municipality Block 6/306 was obtained by mistake, is null and void ab initio and confers no title to the 1st defendant
  3. 3.Order that the 2nd defendant do revoke the lease issued in favour of the 1st defendant over Eldoret Municipality Block 6/306
  4. 4.Direction that the 3rd defendant cancel the registration of the 1st defendant as proprietor as lessee of Eldoret Municipality Block 6/306
  5. 5.Permanent injunction restraining the 1st defendant, its servants, agents or representatives from occupying, remaining in occupation, possession or in any other way trespassing on Eldoret Municipality Block 6/231
  6. 6.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Former Constitution of Kenya (repealed)Section 75
  • Government Proceedings ActChapter 40, Laws of Kenya
  • Government Lands Act (repealed)Section 77(1)
  • Land Act No. 6 of 2012Section 31(1)
  • Land Acquisition Act (repealed)Cap. 295
  • Land Act No. 6 of 2012Section 110(1)
  • Limitation of Actions ActSections 27 and 28
Jurisdiction invoked
Original civil jurisdiction over land disputes; judgment does not expressly cite a jurisdictional provision (Article 40 of the Constitution of Kenya, 2010 invoked for protection of property rights)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kisekem Ltd v Michael Kipkering Cherwon & 3 others [2019] KEELC 2354 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2354/eng@2019-07-18

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