Jama Musa Hussein v Registrar of Government Lands & 2 others [2019] KEELC 4520 (KLR)
The bottom line
#A Kenyan court upheld government caveats on three Nairobi plots, ruling that anyone holding title to former public land must prove they acquired it lawfully.
What this practically means
#Executive summary
#Key legal issues
#Justification for registration of the caveats/restrictions
The Registrar was justified because the plaintiff failed to show how public land became private property and the caveats protected public interest pending EACC investigations
The suit properties were acquired by the City Council of Nairobi from P.A De Souza in 1967 for the expansion of Pumwani Maternity Hospital. Investigations showed the allocations were irregular: no applications, no Town Planning Committee or Full Council resolutions, no ministerial approval, no valuation and no ministerial consent under Section 144(6) of the repealed Local Government Act. A holder of title to formerly public land must demonstrate lawful acquisition; absent evidence, the restrictions were validly placed to protect public interest and allow investigations.
Effect of citing the repealed Government Lands Act, s.116(1)(a), six days after the Land Registration Act came into force
The error was minor and curable; the Registrar had statutory powers under Section 76 of the Land Registration Act, and the caveats would be varied to cite the correct provision
The Government Lands Act was repealed on 2/5/2012 and the caveats were lodged on 8/5/2012 under the repealed provision. However, s.116 of the repealed Act was reproduced as Section 76 of the Land Registration Act, so the Registrar had power to restrict. Section 108 of the Land Registration Act preserved administrative acts under repealed laws pending regulations. The mis-citation is curable by a variation order under Section 78.
Consequence of failure to give prompt notice of the restrictions under Section 77(1) of the Land Registration Act
Although no notice was given, the caveats were not vacated given the gravity of the allegations and public interest; prejudice is compensable in damages
Section 77(1) requires written notice to the affected proprietor, and no statutory timelines exist, so notice had to be given without unreasonable delay. There was no evidence notice was ever given. But considering the gravity of the allegations of irregular disposal of public properties and the public interest, the court declined to vacate the caveats on that account, holding damages an adequate remedy.
Whether the declaratory and injunctive reliefs sought could be granted in this originating summons
No - the Section 78(2) jurisdiction is limited to vacating or varying restrictions
The originating summons was taken out under Part VII of the Land Registration Act. The court's jurisdiction under Section 78(2) extends only to vacating or varying restrictions, not to declarations of ownership or mandatory injunctions directing registration of transfers. The plaintiff must pursue those reliefs in a proper forum where evidence will be led.
Legal principles established
#- Where title to formerly public land is challenged, the title holder must prove the title was acquired regularly and lawfully
- Failure to quote the correct empowering statutory provision in a restriction is a curable error
- Where no statutory timeline for notice of a restriction exists, notice must be given without unreasonable delay
Court orders
#- 1.The plea for declaratory orders conferring ownership of the suit property is declined
- 2.The plea for immediate removal of the caveats registered against the suit properties by the Land Registrar is declined
- 3.The said caveats shall be amended/varied within 60 days to reflect the correct corresponding legal provision within the Land Registration Act
- 4.The said caveats shall remain in force for a period of twelve (12) months during which period the 3rd defendant shall complete investigations and discharge its mandate under the law
- 5.Upon expiry of 12 months, the caveats shall stand vacated and, absent preservatory orders, the plaintiff shall be at liberty to register dealings on the said titles
- 6.Each party shall bear their respective costs of the suit
- Jurisdiction invoked
- Sections 76, 77 and 78(2) of the Land Registration Act (originating summons under Part VII)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Otom (Suing as the Administrator of the Estate of Thomas Otom Agullo) v Commissioner of Lands & 4 others (Environment & Land Case 747 of 2015) [2025] KEELC 3991 (KLR)[2025] KEELC 3991 (KLR)8 May 2025
- Municipal Council of Kisumu v Teleposta Pension Scheme Registered Trustees & 19 others (Civil Appeal 33 of 2020) [2025] KECA 619 (KLR)[2025] KECA 619 (KLR)28 Mar 2025
- Crossley Holdings Ltd v Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries & 4 others; Richard Ochieng Ogendo & another (Interested Parties) [2021] KEELC 1868 (KLR)[2021] KEELC 1868 (KLR)30 Sept 2021
Cite this brief
#Cite this brief
Caselaw, "Jama Musa Hussein v Registrar of Government Lands & 2 others [2019] KEELC 4520 (KLR)", Case Analysis (2019). Originating Summons (ELC Nairobi) – filed 24/2/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4520/eng@2019-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.