Kenya Anti-Corruption Commission v Peter Okongo Oyoo & another [2019] KEELC 2708 (KLR)
The bottom line
#A Kenyan court cancelled a lease over land already belonging to Kenya Railways, ruling that land vested in a public corporation cannot be reallocated by the Commissioner of Lands.
What this practically means
#Executive summary
#Key legal issues
#Vesting of the suit land in Kenya Railways Corporation
The plaintiff proved that the suit property was part of land originally vested in the East African Railways & Harbours Administration, later East African Railways Corporation, and currently vested in Kenya Railways Corporation; the uncontroverted testimony of PW1 to PW3 established this.
Three witnesses - a Kenya Railways surveyor, a Ministry of Lands surveyor and a National Land Administration Officer - traced the parcel from L.R No. 1148/1184 through conversion to Kisumu Municipality/Block 7/365 and vesting in Kenya Railways Corporation. None of the defendants entered appearance, filed a signed defence, or cross-examined the witnesses, so the evidence stood unrebutted.
Validity of the alienation by the Commissioner of Lands
The allocation of land already alienated and vested in Kenya Railways Corporation, without the corporation's consent, was illegal, unprocedural and irregular, and being an illegality was a nullity that could not bind the office of the Commissioner of Lands.
The 2nd Defendant, then Commissioner of Lands, allocated the suit property to the 1st Defendant when he knew or ought to have known the land was already alienated. The Kenya Railways Corporation was not involved and only learned of the transaction later, after which the title was cancelled and the land resurveyed and consolidated back to the Corporation. An ultra vires act by the officeholder is a nullity.
Effect of the 1st Defendant's non-participation
The 1st Defendant's failure to enter appearance, file a defence or participate was taken to mean he did not wish to contest the claim, notwithstanding the lease and certificate of lease held in his name.
Despite holding a registered lease and certificate of lease, the 1st Defendant never entered appearance or filed a defence after substituted service by advertisement. Following the authority in Kenya Anti-Corruption Commission v Online Enterprises Ltd, the court held the lease null and void ab initio and incapable of conferring title on him.
Weight of an unsigned and undated statement of defence
The 2nd Defendant's unsigned and undated statement of defence had no probable value, since he called no evidence to support its averments.
Although the 2nd Defendant filed a statement of defence asserting presidential executive powers of alienation, it was unsigned by him or his counsel and he did not participate in the trial or tender any evidence. Unsupported averments remain mere allegations and cannot displace the plaintiff's uncontroverted evidence.
General damages for fraud
The prayer for general damages was refused for want of supporting evidence.
No evidence was tendered to guide the court in determining whether or how much damages to award, and no evidence showed the defendants had been charged or convicted of any corruption or fraud offence. Relying on the Mater Misericordiae Hospital decision, the prayer failed.
Legal principles established
#- Land already alienated and vested in a public corporation is not available for fresh allocation by the Commissioner of Lands; an allocation without the corporation's consent is illegal, unprocedural and a nullity.
- A lease procured over public corporation land without the corporation's knowledge or consent is null and void ab initio and confers no title.
Court orders
#- 1.Declaration that the issuance of a lease by the 2nd Defendant to the 1st Defendant over Kisumu Municipality/Block 7/542 was null and void ab initio and ineffectual to confer any right, interest or title upon the 1st Defendant
- 2.Declaration that the registration of the lease and issuance of a Certificate of Lease over Kisumu Municipality/Block 7/542 to the 1st Defendant was null and void
- 3.Order for rectification of the land register by cancellation of the lease and Certificate of Lease over Kisumu Municipality/Block 7/542 so as to restore the suit property to the corporation
- 4.Permanent injunction restraining the 1st Defendant, his agents, servants or assigns from dealing with Kisumu Municipality/Block 7/542
- 5.Costs of the suit awarded to the Plaintiff against the Defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit concerning land registration and title)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Anti-Corruption Commission v Peter Okongo Oyoo & another [2019] KEELC 2708 (KLR)", Case Analysis (2019). ELC. No. 731 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2708/eng@2019-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.