Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedKisumu HCCC (not stated in excerpt; EACC suit re Kisumu Municipality Block 7/474)· [2019] KEELC 4680 (KLR)

Kenya Anti-Corruption Commission v Online Enterprises Ltd & 4 others (Environment and Land Case 708 of 2019) [2019] KEELC 4680 (KLR)

Environment and Land Court (High Court)
25 January 2019
MOM.A. ODENY
6,939 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

#

A Kenyan court cancelled land titles bought in good faith because the original lease came from railway reserve land the Commissioner of Lands had no power to allocate.

What this practically means

#

Executive summary

#
The plaintiff, the Ethics and Anti-Corruption Commission, sued under section 7(1)(h) of ACECA seeking declarations that the lease of Kisumu Municipality Block 7/474 issued by the 5th defendant (the then Commissioner of Lands) to the 1st defendant, and subsequent transfers to the 2nd, 3rd and 4th defendants, were null and void; rectification of the register; a permanent injunction against the 3rd and 4th defendants; and general damages. The plaintiff's three witnesses established through maps, the RIM, a PDP, and Legal Notices 440/1963, 20/1969 and 24/1986 that the land was reserved for railways as early as 1935 and vested in the Kenya Railways Corporation, and that there were no approved PDPs for its allocation; the EACC investigator confirmed the lease and green card were forgeries. The 1st and 5th defendants did not participate; the 2nd, 3rd and 4th defendants claimed to be bona fide purchasers for value without notice. Applying sections 3 and 7 of the Government Lands Act and following James Joram Nyaga, the court held that only the President could alienate unalienated Government land and that the 5th defendant had no authority to alienate reserved railway land, rendering the lease void ab initio. Applying section 26(1)(b) of the Land Registration Act and the Katende bona fide purchaser criteria, the court held that no good title passed to any subsequent purchaser and their titles were impeachable even if innocent. The register was rectified under section 80(1), the lease and certificates of lease cancelled, the property restored to the Corporation, and a permanent injunction issued. General damages were not granted. Costs were awarded to the plaintiff against the defendants.

Key legal issues

#
01

Whether the suit property was railway reserve land vested in the Kenya Railways Corporation

Holding

Yes; it was reserved as railway land as early as 1935 and vested in the Corporation under successive Legal Notices, so it was never unalienated Government land available for allocation.

Reasoning

PW1 (NLC Land Administrator) produced the original railway reserve map and records; PW2 (Land Surveyor) confirmed the RIM and PDP showing Block 7/474 within the railway reserve; PW3 (EACC investigator) proved Legal Notices 440/1963, 20/1969 and 24/1986 vesting the land in East Africa Railways and Harbour and later Kenya Railways Corporation. The evidence was unchallenged and established the land was not available for allocation.

p. 5
02

Whether the 5th defendant acted illegally in issuing the lease

Holding

Yes. Only the President may alienate unalienated Government land under section 3 GLA, and section 7 excludes that power from the Commissioner's delegated powers; no presidential authority existed.

Reasoning

The court applied section 3 and the proviso to section 7 of the Government Lands Act and followed James Joram Nyaga, holding the Commissioner had no authority to alienate reserved land. Land already alienated/reserved could not be re-allocated, per Paul Nderitu Ndung'u and Milankumar Shah. The 5th defendant therefore acted illegally and contrary to Cap 280, Cap 397 and Cap 446.

p. 3
03

Whether the 3rd and 4th defendants were bona fide purchasers for value without notice

Holding

No; they failed to establish the Katende ingredients because the 5th defendant had no authority to alienate and could pass no good title.

Reasoning

Applying Katende v Haridar, the court held a purchaser cannot rely on the doctrine where the vendor's root title was void ab initio. The title holder need not be party to the illegality for section 26(1)(b) of the Land Registration Act to defeat the title; the 1st defendant's title being fraudulent, no valid title passed down the chain.

p. 8
04

Whether the register should be rectified

Holding

Yes, under section 80(1) of the Land Registration Act the registration was obtained by fraud and mistake and was cancelled.

Reasoning

The court found the defendants irregularly, fraudulently and unprocedurally registered the suit land in their names. Section 80(1) empowers rectification where registration was obtained by fraud or mistake, and the court exercised that power to restore the property to the Corporation.

p. 8

Legal principles established

#
  • The Commissioner of Lands had no authority to alienate land reserved for the Kenya Railways Corporation; only the President may alienate unalienated Government land under section 3 of the Government Lands Act, and such alienation is void ab initio.
  • A purported bona fide purchaser derives no better title than his vendor held; where the root title was unlawfully acquired, the doctrine of bona fide purchase is unavailable.
  • Under section 26(1)(b) of the Land Registration Act, a title is impeachable even in the hands of an innocent holder if acquired illegally, unprocedurally or through a corrupt scheme.
  • Where a lease or certificate of lease is contested as improperly acquired, the holder must prove through evidence that it was properly acquired; possession of a title document alone is not enough.

Court orders

#
  1. 1.A declaration that the issuance of a lease by the 5th defendant to the 1st defendant over Kisumu Municipality Block 7/474 was null and void ab initio and ineffectual to confer any right, interest or title upon the 1st defendant
  2. 2.A declaration that the transfers and issuance of certificates of lease over Kisumu Municipality Block 7/474 to the 2nd, 3rd and 4th defendants was null and void and ineffectual to confer a good title upon any of them
  3. 3.An order for rectification of the lands register by cancellation of the lease over Kisumu Municipality Block 7/474 and certificate of lease issued to the 3rd and 4th defendants so as to restore the suit property to the Corporation
  4. 4.An order of permanent injunction against the 3rd and 4th defendants, their agents, servants or assigns, restraining them from dealing with Kisumu Municipality Block 7/474
  5. 5.Costs of the suit to be paid by the defendants

Authorities

#

Legislation

  • Anti-Corruption and Economic Crimes Act (ACECA)Section 7(1)(h)
  • Ethics and Anti-Corruption Commission Act (EACCA)Section 11(j)
  • Government Lands Act (Cap 280)Sections 3, 7
  • Kenya Railways Corporation Act (Cap 397)Sections 3(2), 14(4), 14(5)
  • State Corporations Act (Cap 446)Section 3(2)(c)
  • Constitution of Kenya 2010Article 40(6)
  • Land Registration Act 2012Sections 24, 26(1)(a) and (b), 80(1)
  • Physical Planning Act (Cap 286)Section 3
  • Registration of Titles Act (Cap 281)noted in quoted authority
  • Legal Notice No 440 of 12/7/1963vesting in East Africa Railways and Harbour
  • Legal Notice No 20 of 13/5/1969vesting in East Africa Railways and Harbour
  • Legal Notice No 24 of 22/2/1986vesting in Kenya Railways Corporation

Cases cited (15)

  • Kipsirgoi Investment Ltd – vs – Kenya Anti-Corruption Commission
    Court of Appeal Civil Appeal No. 288 of 2010
  • Alice Chemutai Too – vs – Nickson Kipkurui Korir & 2 Others
    [2015] eKLR
  • KACC – Vs – Sammy Komen Mwaita and another
    Nakuru HCCC No. 43 of 2008
  • Republic – vs – District Land Registrar, Mombasa & 5 Others Ex-Parte Super Nove Properties Ltd
    [2016] eKLR
  • James Joram Nyaga & Another –v- Attorney General & Another
    NBI HC. Misc. Appl. 1732 of 2004 [2007] eKLR
  • Milankumarn Shar & Two others –vs- City Council of Nairobi & Others
    Nairobi HCCC No. 1024 of 2005
  • Paul Nderitu Ndung'u & 20 Others –V- Pashito Holdings Limited & Another
    Nairobi HCCC No. 3063 of 1996
  • Elijah Makeri Nyangw'ra –vs- Stephen Mungai Njuguna & Another
    [2013] eKLR
  • Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others
    [2015] eKLR
  • Republic vs Minister For Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collector & 15 Others
    Mombasa HCMCA No. 617 of 2003 [2006] 1 KLR (E&L) 563
  • Mureithi & 2 Others (For Mbari Ya Murathimi Clan) vs Attorney General & 5 Others
    Nairobi HCMCA No. 158 of 2005 [2006] 1 KLR 443
  • Chemei Investments Limited vs The Attorney General & Others
    Nairobi Petition No. 94 of 2005
  • Dr. Joseph Arap Ngok vs Justice Moijo ole Keiwua & 5 Others
    Civil Appeal No. Nai. 60 of 1997
  • KATENDE V HARIDAR & COMPANY LIMITED
    [2008] 2 E.A. 173
  • Milan Kumar Shah & 2 Others vs. City Council of Nairobi & Another
Jurisdiction invoked
Section 7(1)(h) of the Anti-Corruption and Economic Crimes Act (ACECA); powers not housed under Section 11(j) of the Ethics and Anti-Corruption Commission Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Kenya Anti-Corruption Commission v Online Enterprises Ltd & 4 others (Environment and Land Case 708 of 2019) [2019] KEELC 4680 (KLR)", Case Analysis (2019). Kisumu HCCC (not stated in excerpt; EACC suit re Kisumu Municipality Block 7/474). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4680/eng@2019-01-25

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