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ELCPartially AllowedNot stated in the judgment (originally High Court at Mombasa, transferred to the Environment and Land Court)· [2019] KEELC 2452 (KLR)

Kenya Anti-Corruption Commission v Aerial Developers Limited & another [2019] KEELC 2452 (KLR)

Environment and Land Court
10 July 2019
4,824 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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Kenya's Environment and Land Court cancelled fraudulently obtained title to public land reserved for civil aviation, confirming that reserved land cannot be re-allocated.

What this practically means

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Executive summary

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The Ethics and Anti-Corruption Commission sued for recovery of LR MN/1/2398 in Bamburi/Nyali, Mombasa, alleging that the 3rd Defendant, the former Commissioner of Lands, fraudulently and ultra vires allocated the reserved property to the 1st Defendant in 2002, with subsequent transfer to the 2nd Defendant. The property, with a Government staff bungalow (HG145), had been surveyed and reserved in the 1970s for the Directorate of Civil Aviation (later the Kenya Civil Aviation Authority) and vested in that Authority by Gazette Notice in 2006. Only the 3rd Defendant filed a defence; none of the defendants adduced evidence, their case being closed on 18/12/2018 for non-attendance. The EACC called two witnesses whose evidence stood uncontroverted. The court framed three issues: whether the property was lawfully alienated, whether the defendants' titles deserved protection or cancellation, and whether the remedies sought were available. Applying the repealed Government Lands Act, the court held that the suit property was not unalienated Government land having been reserved for a specific public use, that the Grant issued by the 3rd Defendant without presidential authority was fraudulent and void, and that the plaintiff had proved fraud, abuse of office and misfeasance on a balance of probabilities. Judgment was entered in terms of prayers (a), (b) and (c) of the plaint - declaration of nullity, rectification of the register, and preservation/permanent injunction. The damages prayers were not granted. Costs were awarded to the plaintiff jointly and/or severally against the defendants.

Key legal issues

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01

Whether the suit property was lawfully alienated to the 1st Defendant

Holding

The alienation was unlawful, fraudulent and void ab initio because the property was reserved public land not available for allocation.

Reasoning

Under the repealed Government Lands Act only the President (s.3) and the Commissioner of Lands (s.7, subject to presidential directions) could alienate Government land. The suit property had been surveyed, alienated and reserved for staff housing for the Directorate of Civil Aviation, was entered in the Government Building Register, and had never been surrendered. It was therefore not unalienated Government land under s.3(a), and no evidence showed presidential execution of the Grant.

p. 5
02

Whether the titles of the 1st and 2nd Defendants should be protected or cancelled

Holding

The titles are liable to cancellation; the Grant was issued fraudulently and conferred no enforceable estate.

Reasoning

The plaintiff proved the particulars of irregularity, illegality, fraud, abuse of office and misfeasance in public office pleaded against the defendants. The defendants adduced no evidence; the 1st and 2nd Defendants filed no defence and the 3rd Defendant did not testify, leaving the plaintiff's evidence uncontroverted. Applying the principle that paper transactions without an existing parcel confer no title, the Grant CR.33869 was void and the register ought to be rectified.

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03

Effect of a party's failure to adduce evidence

Holding

Pleadings unsupported by evidence remain mere statements of fact and the opposing evidence stands uncontroverted.

Reasoning

The court noted that only the plaintiff called evidence despite a hearing date taken by consent, and the defendants' case was closed on 18/12/2018 for non-attendance. Applying the settled principle, unsubstantiated pleadings cannot defeat proved evidence, and the plaintiff's case was proved on a balance of probabilities.

p. 5

Legal principles established

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  • An interest in land cannot be allotted, alienated or transferred where the specific parcel of land does not exist; paper transactions without a parcel as substratum confer no title.
  • Land already alienated, surveyed and reserved for a specific public use is not unalienated Government land available for allocation under Section 3(a) of the Government Lands Act (repealed).

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendants in terms of prayers (a), (b) and (c) of the plaint, namely: a declaration that the allocation and lease of LR MN/1/2398 to the 1st Defendant was irregular, fraudulent, illegal and null and void; rectification of the register by cancellation of the title and all entries in favour of the 1st Defendant; and an order of preservation and permanent injunction restraining the 1st and 2nd Defendants from dealing with MN/1/2398 otherwise than by transfer or surrender to the Kenya Civil Aviation Authority or the Government of Kenya
  2. 2.Costs awarded to the plaintiff jointly and/or severally against the defendants

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Anti-Corruption and Economic Crimes ActNo. 3 of 2013 (establishment of the Plaintiff); Sections 11(j) and 37
  • Government Lands Act, Cap 280 (repealed)Sections 3, 3(a), 4, 7, 12, 20 and 128
  • Civil Aviation Act, Chapter 394 Laws of KenyaVesting of assets of the Directorate of Civil Aviation in the Kenya Civil Aviation Authority
  • Registration of Titles Act (repealed)Sections 23 and 56
  • Government Financial Regulations and Board of Survey ProceduresNot specified

Cases cited (5)

  • Benja Properties Limited –v- Syedna Mohammed Burhannudin Sahed & 4 Others
    (2015) eKLR
  • Kenya Industrial Estates Limited –v- Anne Chepsiror & 5 Others
    (2015) eKLR
  • Henry Muthee Kathurima –v- Commissioner of Lands & Another
    (2015) eKLR
  • Kenya National Highway Authority –v- Shalien Masood Mughal & 5 Others
    (2017) eKLR
  • Dr. Joseph Arap Ngok –v- Justice Moijo Ole Keiuwa & 5 Others
    Civil Appeal No. Nai 6 of 1997
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 (transfer of the suit from the High Court to the Environment and Land Court)

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, "Kenya Anti-Corruption Commission v Aerial Developers Limited & another [2019] KEELC 2452 (KLR)", Case Analysis (2019). Not stated in the judgment (originally High Court at Mombasa, transferred to the Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2452/eng@2019-07-10

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