Robert Mutiso Lelli v Kenya Medical Training College; Attorney General & another (Interested Parties) [2019] KEELC 2854 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled irregularly allocated public land, holding that a registered title cannot protect land illegally taken from a public institution.
What this practically means
#Executive summary
#Key legal issues
#Whether the Commissioner of Lands had power to allocate L.R. Nos. 209/14270 and 209/14272 to the Plaintiff
The Commissioner of Lands had no power to allocate the Suit Property; the suit parcels were reserved for the Defendant under pdp number 42/21/95/04A and the Commissioner was not authorised to exercise the President's powers under Section 3 of the Government Lands Act.
The court traced the alienation procedure and the part development plan reserving parcels 61-64 for the Defendant. Under Section 7 of the Government Lands Act, the Commissioner could not exercise powers conferred on the President under Sections 3, 12, 20 and 112. The Suit Property was created from parcels reserved for the Defendant, and the land was in the Defendant's occupation at allocation.
Whether the Plaintiff's registered title was indefeasible
No. The Plaintiff did not acquire good title, and the constitutional protection under Article 40(6) does not extend to illegally acquired land.
The Plaintiff relied on Section 23 of the repealed Registration of Titles Act and first-registration indefeasibility, but the court held that where the root of title is irregular, protection under Article 40(6) does not apply to land found to have been illegally acquired. Occupation rights of the Defendant also bound the land.
Whether the allocation of the Suit Property to the Plaintiff as settlement of HCCC No. 1354 of 1998 legitimised the grant
No. There was no basis for the Commissioner of Lands to compensate the Plaintiff with the parcels listed, since his claim should have been directed at the person who sold him plot 9707 Malindi.
The court examined the demand letter and correspondence. The Plaintiff's loss arose from buying plot 9707 Malindi which fell in the Indian Ocean; due diligence would have revealed this. The judgment in HCCC No. 1354 of 1998 did not expressly specify that the suit land would satisfy the settlement, and public interest was not considered.
Whether the Defendant proved its counterclaim
Yes, on a balance of probabilities, and prayers (a), (b), (c) and (d) of the Amended Counterclaim were granted.
Evidence from the Ministry of Lands, survey and physical planning officials established that the suit land was curved out of parcels 61-64 reserved for the Defendant, that the Defendant was in occupation, and that seven of the ten excised plots had already been recovered and reamalgamated into L.R. No. 209/18535 for the Defendant.
Legal principles established
#- Land held or occupied by a government agency does not constitute unalienated government land even if no title has been issued to that agency, and is therefore not available for alienation to private persons
- Under the repealed Government Lands Act, the power to make grants over unalienated government land vested in the President, not the Commissioner of Lands
- The constitutional protection of property rights under Article 40(6) does not extend to land found to have been illegally acquired
Court orders
#- 1.Judgment entered for the Defendant on its Amended Counterclaim dated 15/2/2012, granting prayers (a), (b), (c) and (d)
- 2.Declarations that L.R. No. 209/14270 and L.R. No. 209/14272 were reserved for and belong to the Defendant and were irregularly allocated to the Plaintiff (embodied in the granting of the counterclaim prayers)
- 3.Permanent injunction restraining the Plaintiff from dealing with L.R. No. 209/14270 and L.R. No. 209/14272 (embodied in the counterclaim prayers)
- 4.The Plaintiff's suit, previously dismissed for want of prosecution, remains dismissed
- 5.Costs of the counterclaim awarded to the Defendant, to be borne by the Plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the defendant's counterclaim concerning title to L.R. No. 209/14270 and L.R. No. 209/14272
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Mutiso Lelli v Kenya Medical Training College; Attorney General & another (Interested Parties) [2019] KEELC 2854 (KLR)", Case Analysis (2019). ELC Case No. 354 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2854/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.