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ELCPartially AllowedPetition dated 2nd July, 2014· [2019] KEELC 3162 (KLR)

Vijaykumar Shamji Patel v Principal Secretary to National Treasury & 5 others [2019] KEELC 3162 (KLR)

Environment and Land Court
24 May 2019
OAO. A. Angote
3,415 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenyan government agencies cannot revoke your registered land title by Gazette Notice without first giving you a hearing and obtaining a court order.

What this practically means

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Executive summary

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This Environment and Land Court judgment at Machakos disposed of a Petition dated 2nd July, 2014 by the registered proprietor of L.R. No. 27792 Mavoko and a Cross-Petition dated 15th October, 2018 by the State Respondents. The Petitioner, allocated the land in 2007 by the Commissioner of Lands with a Part Development Plan, complied with allotment conditions, obtained survey and Deed Plans, was registered in November 2007, and developed approved plans for 398 maisonettes. In 2010, the Registrar of Titles purportedly revoked his title by gazette notice on the ground that the land was reserved for public purposes, allocated the same land to the Permanent Secretary, Treasury as L.R. No. 28455, and created a new Deed Plan - all without notice to the Petitioner. The court held that the Registrar had no power under the Registration of Titles Act to revoke a registered title without a court order, that a hearing was mandatory before any revocation even where the State believed the acquisition illegal, and that the only PDP in evidence showed the suit land was earmarked for future housing programmes, not public housing. The Respondents' Cross-Petition was dismissed with costs. The Petition was allowed: the gazette notices, the second letter of offer, the registration of L.R. No. 28455, the amended survey plan and the new Deed Plan were all declared unconstitutional, null and void, and the Petitioner's title and original Deed Plan were upheld. The Respondents were ordered to pay the costs of both the Petition and the Cross-Petition.

Key legal issues

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01

Lawfulness of revocation of title by gazette notice

Holding

The revocation of the Petitioner's title by Gazette Notice No. 3453 was unlawful, unconstitutional, null and void, as was the creation of L.R. No. 28455

Reasoning

The Registrar of Titles has no statutory power to revoke registered title; only a court or the National Land Commission may do so. The Petitioner received no notice or hearing before the revocation, contrary to natural justice. The registered title under the Registration of Titles Act was indefeasible except for fraud or misrepresentation, none of which was proved.

p. 4
02

Whether the suit land was public land reserved for public purpose

Holding

The Cross-Petition failed because the suit land was earmarked for 'proposed sites for future Housing programmes' and not for public housing

Reasoning

The only Part Development Plan before the court, produced by the Petitioner, distinguished land marked A and B for Ministry of Housing Low Cost Housing and UN-HABITAT from the land allocated to the Petitioner. The Respondents, custodians of government land documents, produced no evidence that the PDP was varied, and allowed the Petitioner's building plans without objection.

p. 4
03

Right to a hearing before deprivation of property

Holding

Any person whose rights are to be affected must be heard before the decision is made; a decision made in breach of natural justice is null and void

Reasoning

Relying on Dickson Ngigi, Attorney General v Ryan and Mirugi Kariuki, the court held that the right to a hearing before a decision affecting legal rights is basic and mandatory, even where the authority believes the acquisition was illegal or fraudulent. The Respondents conceded no notice was issued personally or by advertisement.

p. 4

Legal principles established

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  • Once government organs register land in the name of a private entity, it can only be repossessed by compulsory acquisition, and the registered proprietor must be notified before any revocation
  • There is no power under the Registration of Titles Act to revoke a registered title without a court order
  • A decision affecting legal rights arrived at in breach of natural justice is outside the decision-maker's jurisdiction
  • Public interest must be protected within the law and cannot sanction an illegality

Court orders

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  1. 1.Declaration that the Petitioner is the proprietor of L.R. No. 27792 Mavoko and entitled to all rights appurtenant thereto
  2. 2.Declaration that Kenya Gazette Notices No. 2932 and 3454 revoking the Petitioner's title are unconstitutional, null and void
  3. 3.Declaration that the second letter of offer dated 11th May, 2010 to the Permanent Secretary Treasury and the registration of the transfer from L.R. No. 27792 to L.R. No. 28455 infringed Articles 40 and 47 and are null and void
  4. 4.Declaration that Survey Plan No. 345/41 deleting L.R. No. 27792 and replacing it with L.R. No. 28455 is unconstitutional, illegal, null and void
  5. 5.Cancellation of Deed Plan Reference Number 309106
  6. 6.Upholding of Deed Plan Reference Number 280499 over L.R. No. 27792
  7. 7.Cancellation of the Title Deed to L.R. No. 28455 issued in favour of the 1st Respondent to hold in trust for the 5th Respondent and upholding of the Title Deed to L.R. No. 27792
  8. 8.Respondents to pay the costs of the Petition and the Cross-Petition

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 40(6), 47, 62(2)
  • Registration of Titles Act (repealed)Sections 20, 21, 22, 23(1)
  • Government Lands Actrelevant provisions on reservation for public purposes
  • Trust Land Actrelevant provisions on reservation for public purposes

Cases cited (5)

  • Dickson Ngigi vs. Commissioner of Lands
    (1998) eKLR
  • Kuria Greens Limited vs. Registrar of Titles & Another
    (2011) eKLR
  • Republic vs. G.G. Gachihi, Land Registrar, Ex-parte Varun Industrial Credit Ltd
    (2013) eKLR
  • Attorney General vs. Ryan
    (1980) AC 718
  • Mirugi Kariuki vs. The Attorney General
    (1992) eKLR
Jurisdiction invoked
Articles 40 and 47 of the Constitution of Kenya (petitions on violation of property rights and fair administrative action)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Vijaykumar Shamji Patel v Principal Secretary to National Treasury & 5 others [2019] KEELC 3162 (KLR)", Case Analysis (2019). Petition dated 2nd July, 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3162/eng@2019-05-24

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