Mullys Childrens Family Trust Registered Trustees v Ministry of Public Service, Youth and Gender Affairs & 2 others [2019] KEELC 4873 (KLR)
The bottom line
#A Kenyan court stopped the government from revoking a Trust's land titles because officials published a revocation notice without hearing the owners or proving the land was public.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit land was public utility land incapable of alienation
The Respondents failed to prove the land was set aside for public purpose; their bare assertion without a Replying Affidavit or evidence could not defeat the Petitioner's titles.
The Respondents filed only Grounds of Opposition, no Replying Affidavit, and produced no evidence that the parcels were reserved for the 2nd Respondent's use. Though land reserved for public purpose cannot be alienated privately, the assertion must be proved. Having failed to discharge that burden, the Respondents could not impugn titles founded on Freehold Grants issued by the Commissioner of Lands to the Vendors and subsequently purchased by the Petitioner.
Burden of proof regarding the public purpose claim
The burden lay on the Respondents to show the land was set aside for public purpose before it could shift to the Petitioner.
The Respondents invoked Munyu Maina v. Hiram Gathiha Maina to shift the burden to the Petitioner, but the court held, relying on the Court of Appeal's later decision in Peter Kamau Njau v. Emmanuel Charo Tinga, that due diligence does not extend beyond the vendor's title and a Certificate of Title is prima facie evidence of indefeasible ownership under Section 26 of the Land Registration Act.
Whether the Notice of 13th February 2018 violated Article 47
The Respondents failed to give the Petitioner an opportunity to be heard before publishing the Notice, breaching Article 47.
There was no evidence of any Notice of Complaint served on the Petitioner or the original Allotee, nor any hearing before the public notice was published. A person with a right, interest or legitimate expectation may not be deprived of it without a hearing. The failure to hear the Petitioner independently justified the finding that its constitutional rights would be violated by the intended revocation.
Legal principles established
#- Land reserved or set aside for a public purpose cannot be alienated to a private person, and a title issued over such land will be cancelled.
- The burden lies on the party asserting that land is public purpose land; only then does the burden shift to the title holder to show lawful acquisition.
- A person with a right, interest or legitimate expectation is entitled to a hearing before deprivation, per Article 47 of the Constitution.
Court orders
#- 1.A declaration that the Petitioner's rights under Article 40 of the Constitution shall be violated and infringed by the Respondents through the intended revocation and repossession of land parcel Numbers 15312 and 15246, affecting more than 2,500 children benefiting from the Petitioner's programs
- 2.A declaration that the Petitioner, having acquired Certificates of Titles for L.R Nos. 15312/1, 15312/2, 15312/3, 15312/4, 15246/2 and 15246/3 as purchaser for value without notice, holds genuine and indefeasible titles to the said parcels
- 3.An injunction restraining the Respondents from revoking and repossessing the Petitioner's title to the said parcels created from the mother titles L.R No. 15312 Grant No. I.R. 71501 and L.R No. 15246 Grant No. I.R. 65169
- 4.Costs of the Petition to be borne by the Respondents
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mullys Childrens Family Trust Registered Trustees v Ministry of Public Service, Youth and Gender Affairs & 2 others [2019] KEELC 4873 (KLR)", Case Analysis (2019). Petition dated 23rd February, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4873/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.