Kenya Anti-Corruption Commission v Charles Oyoo Kanyangi & 5 others [2019] KEELC 4162 (KLR)
The bottom line
#Kenya's anti-corruption body successfully reclaimed public land in Kisumu, and every title built on that fraudulent allocation was cancelled.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the EACC
The Plaintiff had standing as a body corporate mandated to institute recovery proceedings for public property
The court held the EACC is established under Section 3 of the Ethics and Anti-Corruption Commission Act 2011 and empowered under Section 11(1)(j) to institute and conduct court proceedings for recovery and protection of public property. Since the claim concerned fraudulent alienation of public land reserved for the Judiciary, the assertion that it lacked standing could not be seriously maintained.
Limitation
The plea of limitation failed because the Defendants did not discharge the onus of proving the suit was time-barred
The Plaintiff pleaded that the fraud and illegality were only discovered upon its 2007/8 investigations. The Defendants adduced no evidence to controvert this. Since the onus lay on the Defendants to establish that the suit filed in 2008 was caught by the statute of limitation, the plea was rejected.
Res judicata
The plea failed for want of proof that the referenced Nairobi HCCC No. 2126 of 2007 was between the same parties and was heard and finally decided
A res judicata plea is a complete bar and ought to be raised as a preliminary objection with evidence. The 3rd Defendant merely made reference to the Nairobi case without leading evidence that it involved the same parties, the same land, or that it had been heard and finally decided, as required by Section 7 of the Civil Procedure Act and Section 109 of the Evidence Act.
Validity of the alienation of the suit land
The allocation, excision and sub-division of Block 8/22 was fraudulent, illegal and null and void; all derivative titles and the charge were invalid
Uncontroverted evidence showed the land was reserved for the Judiciary since 1951 and was never surrendered for sub-division. The 1st Defendant, a serving judicial officer, abused his office by writing the no objection letter, and the 4th Defendant's issuance of titles was improper. Titles founded on that illegality, including the sale to the 3rd Defendant and the charge to the Bank, were null and void.
Legal principles established
#- Sanctity of title is not a vehicle for fraud and illegalities or an avenue for unjust enrichment at public expense; a title obtained in contravention of the law is not protected by the registrability provisions
- A person with no registrable legal interest in property cannot transfer it or offer it as security
- Public land reserved for the Judiciary is not available for alienation to private persons
- The party pleading res judicata bears the onus of proving the prior suit was heard and finally decided
Court orders
#- 1.Judgment entered for the Plaintiff as against all the Defendants jointly and severally as per the Plaint in the consolidated suits
- 2.Declaration that the allocation, excision and subsequent sale of the suit parcels was fraudulent, illegal, null and void and conferred no interest (prayer (a))
- 3.Rectification of the register by cancellation of the Certificate of Lease and all entries on the land register (prayer (b))
- 4.Preservation and permanent injunction restraining the Defendants from dealing with the suit properties otherwise than by surrender or transfer to the Judiciary/Government of Kenya (prayer (c))
- 5.Consent orders in terms of prayers (a), (b) and (c) of the Plaint against the 3rd Defendant (who conceded), applying also in ELC Case No. 276 of 2015
- 6.Costs of the suit to be met by the 2nd, 4th, 5th and 6th Defendants only
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over public land and title disputes (suits transferred from the High Court pursuant to consolidation order made by Kibunja J on 20th March 2018)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Anti-Corruption Commission v Charles Oyoo Kanyangi & 5 others [2019] KEELC 4162 (KLR)", Case Analysis (2019). Kisumu ELC Case No. 474 of 2015 (Formerly Kisumu High Court Civil Case No. 34 of 2008), consolidated with Kisumu ELC Case No. 276 of 2015 (Formerly Kisumu High Court Civil Case No. 33 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4162/eng@2019-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.