Susan Cheburet Chelugui & another v Daniel Toroitich Arap Moi & 5 others [2019] KEELC 3486 (KLR)

The court traced the land from L.R. No. 10492 through the Noah Kimngeny Chelugui share. The Commissioner of Lands' letters required the head title to be surrendered and new leases issued first in the names of the original owners before transfer to purchasers. Instead, titles and leases were issued directly to purchasers. The former President produced only a lease and white card with no evidence of purchase, and State House interfered with the survey process, leading to unprocedural subdivision.

State counsel Mr. Ngumbi submitted that the 3rd, 4th and 5th respondents acted on orders from the 1st respondent who was then President. The court held that such a statement borders on illegality and impunity and that the court cannot protect property not procedurally acquired. This finding grounded the violation of Article 40 and the equivalent of section 75 of the former Constitution.

The 2nd respondent asserted it bought the parcels for valuable consideration without notice of any defect and conducted searches. However, the court noted it did not see any agreement of sale or evidence of payment of consideration, so the basis of the innocent purchaser claim was unestablished. Since the root title of the 1st respondent was itself tainted, no protection under Article 40(6) or section 26 of the Land Registration Act could attach.

The court considered Article 23(3) remedies and the valuations of Afriland Valuers (Kshs. 1,710,000,000) and the County Land Valuer (Kshs. 820,000,000). Finding both valuers had not done a comparative valuation of adjacent plots and no sale agreements were availed, the court fixed compensation at Kshs. 1,060,000,000 as commensurate compensation for loss of the land through an unprocedural scheme, payable by the 1st and 2nd respondents.