Sitawi Limited v National Land Commission-Nairobi & 2 others [2020] KEELC 298 (KLR)

Section 44 of the Registration of Titles Act Cap 281 (repealed) governs surrender of leases and provides that the interest of the lessee vests in the lessor. Since the suit land was registered under the Registration of Titles Act, the surrender was governed by that Act, which does not provide for direct conversion of tenure from leasehold to freehold. The surrendered land therefore reverted to Government stock under the Government Lands Act Cap 280 (repealed) rather than becoming registrable as freehold in favour of the Plaintiff's members.

The court reviewed the doctrine of legitimate expectation as enunciated in J.P. Bansal v State of Rajastan, Wade and Forsyth's Administrative Law, Keroche Industries and Haoucher, noting that an expectation must be legitimate and worthy of protection. Applying the authorities, the court held that the approval letters could not found a right to freehold titles because the governing statute required the surrendered land to revert to the Government. Legitimate expectation cannot override the law, and sympathy takes second place to statutes.

Article 40 protects property lawfully acquired, but a party must first establish a proprietary right or interest in land. Relying on Mwaura, the Constitution protects proprietary interests acquired through the existing legal framework but does not create them. Since the surrendered land reverted to the Government, the subsequent leasehold registrations did not arbitrarily deprive the Plaintiff of protected property, and the claim of fraud and violation of Article 40 failed on the uncontroverted documentary record.