Mugo v Attorney General & 2 others (Petition 2 of 2018) [2019] KEELC 5110 (KLR)
The bottom line
#A Kenyan court restored a landowner's title, ruling the government cannot revoke it by Gazette Notice without proving fraud, illegality, public purpose, or giving a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioner's title to Inoi/Kerugoya/250/275 was lawfully acquired and protected
Yes - the petitioner was duly allocated the land, issued a 99-year lease and certificate of lease, and no evidence was led to prove fraud, illegality or that the land was reserved for public purpose
The petitioner produced the allotment letter, Plot Allocation Committee minutes, lease and certificate of lease, and correspondence including council confirmation and approved building plan. The respondents called no witness to prove acquisition was illegal or through a corrupt scheme under Article 40(6) and Section 26 of the Land Registration Act, so the title enjoys indefeasibility.
Whether the revocation of the petitioner's title via Gazette Notice No. 6334 was lawful
No - the revocation without compulsory acquisition with compensation or a suit challenging title, and without a hearing, was unconstitutional and null and void under Articles 40 and 47
Following Kuria Greens, Satima Enterprises and Eunice Grace Njambi Kamau, the court held that a Registrar cannot revoke a title by Gazette Notice without hearing the proprietor; the earlier civil suit in which revocation could have been litigated was withdrawn, and no counter-petition pleaded fraud.
Whether the suit property had been reserved for a public purpose (Kerugoya District Hospital)
No - the respondents failed to place before the court material proving the reservation, so the title must stand
The 2nd Respondent's assertions in a replying affidavit were unsupported by any witness testimony. Relying on Adan Abdirahaman Hasaan, the court held it was the respondents' duty to prove the public purpose; absent such proof, revocation could not be sustained.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership and may only be challenged on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme
- Particulars of fraud, misrepresentation or illegality must be pleaded and proved to the required standard before a title can be deprived of constitutional protection
- A party alleging that land was reserved for a public purpose bears the duty of placing evidence of that reservation before the court; in the absence of such evidence the title stands
Court orders
#- 1.A declaration that Gazette Notice No. 6334 dated 6th June 2001 purporting to revoke the petitioner's title to title number Inoi/Kerugoya/250/275 is contrary to Articles 40 and 47 of the Constitution and is null and void
- 2.The Registrar of titles directed to rescind and reverse the revocation of certificate of title to LR No. Inoi/Kerugoya/250/275 as published in Gazette Notice No. 6334 dated 6th June, 2001
- 3.An order of permanent injunction restraining the respondents from alienating the petitioner's parcel of land comprised in title No. Inoi/Kerugoya/250/275 or interfering with the petitioner's possession
- 4.Costs of the petition to be borne by the Respondents jointly and severally
- Jurisdiction invoked
- Constitution of Kenya, Articles 40 and 47 (petition for violation of property rights and fair administrative action)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugo v Attorney General & 2 others (Petition 2 of 2018) [2019] KEELC 5110 (KLR)", Case Analysis (2019). Petition dated 14th June, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5110/eng@2019-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.