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ELCPartially AllowedELC No. 131 of 2017 (formerly Nairobi ELC No. 621 of 2011)· [2019] KEELC 3561 (KLR)

Sigona Juakali Association v County Government of Kiambu & 8 others [2019] KEELC 3561 (KLR)

Environment and Land Court
2 May 2019
6,289 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court cancelled 31 titles obtained through a corrupt land deal, but the land reverted to public ownership — not to the community that claimed it.

What this practically means

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Executive summary

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The plaintiff, Sigona Jua Kali Association with about 180 members, sued the County Government of Kiambu (successor to the defunct Kikuyu Town Council), the Land Control Board, the Land Registrar, the Attorney General, Jane Wangechi Kimani and purchasers, claiming it had been allotted land parcel Sigona/934 by the council in 2001, but that the records were altered and the land transferred to the 5th defendant and subdivided into parcels 935-965. It sought injunction, a declaration of beneficial ownership, cancellation of titles, eviction, registration and mesne profits. The court framed four issues: res judicata, fraud, entitlement and appropriate orders. It held the suit was not res judicata because the Kikuyu magistrate's court in PMCC No. 53 of 2004 lacked jurisdiction over the counterclaim for cancellation of title. On the evidence, the court found manifest illegality: the green card for parcel 832 showed 0.55 hectares altered to 1.55 hectares without explanation; the Director of Survey confirmed parcel 934 was never subdivided; and the title lasted only six days before subdivision into 31 parcels. The titles were therefore impeached under section 26(1)(b) of the Land Registration Act. However, the plaintiffs' own allocation never crystallized into ownership, the land being found to be government land. The court cancelled all titles 935-965, ordered reversion to parcel Sigona/934, categorized it as public land under Article 62(1)(d), ordered the green card for 832 restored to 0.55 hectares, and directed each party to bear its own costs.

Key legal issues

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01

Whether the suit is res judicata by virtue of Kikuyu PMCC No. 53 of 2004

Holding

The suit is not res judicata because the magistrate's court lacked jurisdiction to determine the counterclaim for cancellation of title, so the issues were never fully determined

Reasoning

The earlier Kikuyu suit only sought injunction and damages for trespass. The Sigona group's counterclaim alleging fraud and seeking nullification of title was held by that court to belong in the High Court. Since the former court was not competent to determine those issues, the ingredients of res judicata, particularly final determination by a competent court, were not met.

p. 5
02

Whether there was fraud or illegality in the creation and alienation of parcel Sigona/934

Holding

Yes - the creation of parcel 934 was shrouded in mystery and the alienation was illegal, unprocedural and through corrupt schemes

Reasoning

The green card showed 0.55 hectares cancelled to read 1.55 hectares with no explanation; the Director of Survey confirmed parcel 934 had never been subdivided; the title issued on 23.4.2002 was subdivided into 31 parcels within six days; and the Land Registrar failed to explain the root of title or respond to queries from the Commissioner of Lands. These anomalies proved illegality in the creation and hasty disposal of the parcel.

p. 7
03

Whether the plaintiffs are entitled to the suit land

Holding

No - the plaintiffs' claim was never concluded and never crystallized into proprietary rights; the land reverts to public land

Reasoning

The allocation minutes did not identify the plot and the applicable law, whether setting apart under section 117 of the former Constitution and section 13 of the Trust Land Act or otherwise, was unclear and the acquisition process remained at infancy. The council itself vacillated between claiming the land and saying it was government land. The plaintiffs therefore had only a legitimate expectation, not ownership.

p. 8

Legal principles established

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  • A title acquired illegally, unprocedurally or through a corrupt scheme is not protected by indefeasibility under section 26(1)(b) of the Land Registration Act, and it is not necessary that the title holder be a party to the vitiating factors
  • Res judicata does not apply where the former court lacked competence to determine the issues raised, particularly a counterclaim for cancellation of title
  • Anomalies in land records such as a subdivision producing a parcel larger than the mother parcel demonstrate illegality impeaching the resulting titles

Court orders

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  1. 1.Declared that the registration of parcel No. Sigona/934 in the name of Jane Wangechi Kimani was illegal, unprocedural and through corrupt schemes
  2. 2.Declared that the alienation of parcel no.934 leading to subdivisions running from 935-965 was unlawful
  3. 3.Ordered that the green card for title number 832 revert to its original format bearing the acreage of 0.55 hectares in the name of the 5th defendant
  4. 4.Declared all titles forming the series SIGONA no.935-965 and any further titles arising from subsequent subdivisions null and void and cancelled forthwith to revert back to parcel no. Sigona 934 measuring 0.970 hectares
  5. 5.Ordered that upon reversion, land Sigona no.934 be categorized as public land under article 62(1)(d) of the Constitution
  6. 6.Ordered survey records to be amended accordingly to reflect the change
  7. 7.Stated plaintiffs remain at liberty to pursue their claim after the reversion in line with Article 62(4) of the Constitution
  8. 8.Authorized the Deputy Registrar of the court to sign all requisite documents to give effect to the judgment
  9. 9.Ordered each party to bear their own costs of the suit

Authorities

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Legislation

  • Local Government Act (Local Authority Act)
  • Land Control ActCap 302
  • Civil Procedure ActSection 7
  • Land Registration ActSections 25, 26, 80
  • Limitation of Actions ActSection 26
  • Constitution of Kenya 2010Articles 40, 61(1), 62(1)(d), 62(4)
  • Government Lands Act
  • Trust Land ActSection 13
  • Registered Lands Act
  • Registration of Titles Act
  • Land Adjudication ActCap 284
  • Land Consolidation ActCap 283
  • Former Constitution of KenyaSection 117

Cases cited (10)

  • Arthi Highways Development Ltd vs West End Butchery Limited
  • Dr. Joseph Arap Ngok vs Justice Moijo Ole Keiwua & 5 others
    Civil Appeal No. Nai. 60 of 1997
  • Alice Chemutai Too vs Nickson Kipkurui Korir & 2 others
    [2015] eKLR
  • Hanniel Gichina Mwangi vs Joe Mwaniki Mwangi & 2 others
    [2018] eKLR
  • Evans Otieno Nyakwana vrs Cleophas Bwana Ongaro
  • John Chelimo Seguton vs Joseph Kitur Kiplangat
    (2005) ELC No. 97 of 2015
  • Urmila S/O Mahendra Shah vs Barclays Bank International Ltd & another
    (1976-80) 1 KLR 1168
  • Theodore Andrew Ochieng vs David Shiundu Masieyi
    ELC NO. 308 of 2017
  • John Florence Maritime Services limited vs. Conken Cargo Forwards and Another
    Malindi Court of Appeal Case No. 42 of 2014
  • Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & Another
    Eldoret ELC Case No. 609 B of 2012
Jurisdiction invoked
Original civil suit under the Land Registration Act and Article 40, 61 and 62 of the Constitution of Kenya 2010

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, "Sigona Juakali Association v County Government of Kiambu & 8 others [2019] KEELC 3561 (KLR)", Case Analysis (2019). ELC No. 131 of 2017 (formerly Nairobi ELC No. 621 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3561/eng@2019-05-02

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