Ethics and Anti-Corruption Commission v Wilson Gacanja & 3 others; Nairobi City Council (Interested Party) [2020] KEELC 318 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled fraudulent 1997 titles to a government house in Nairobi, confirming that a registered title cannot shield fraud.
What this practically means
#Executive summary
#Key legal issues
#Validity of the 1997 allotment and Grant over already alienated, titled and developed Government land
The allotment letter dated 3/11/1997 and Grant Number 74856 are illegal, null and void because the land was already alienated, titled and developed in 1962 and was never surrendered for re-alienation
The uncontroverted evidence showed that LR 209/6238 was surveyed in 1962, granted as IR 19103 to the East African Common Services Authority and later vested in the Government of Kenya as a developed government house. There was no surrender of the 1962 title, no presidential authority under section 3 of the Government Lands Act, and no procedural disposal under the applicable Government Regulations and Ministry of Public Works circulars. The same land reference number appeared on two deed plans and two grants, which the law does not permit.
Burden of proof of fraud and illegality
The plaintiff bore the evidential burden of proving the fraud and illegalities particularised in the amended plaint and discharged it through uncontroverted evidence
As the suit was brought by the plaintiff, it bore the evidential burden of proving the pleaded fraud and illegalities. Five witnesses - including a surveyor, a land registrar and an EACC investigator - gave uncontroverted evidence establishing the 1962 title, the resurvey of 1997 and the duplication of the grant. None of the defendants led any evidence to controvert the plaintiff's case or support their own defences.
Entitlement to the reliefs sought
Prayers (a) to (f) of the amended plaint were granted in the absence of evidence challenging them
The court considered the prayers in the context of the plaintiff's constitutional and statutory mandate to recover public property corruptly acquired. The focus of the prayers was nullification of the impugned alienation and the parallel title. Since no defendant led evidence or submissions challenging the reliefs, and the 3rd defendant orally supported the plaintiff's case, the court granted declarations of nullity, cancellation of titles, restoration of the 1962 title and a permanent injunction.
Costs in public interest litigation
Each party to bear its own costs because the key culprits - the defunct Office of the Commissioner of Lands and the Directorate of Survey - were not parties
The court characterised the suit as largely public litigation prosecuted by a publicly funded body on behalf of the Kenyan people. It observed that the two key culprits in the alienation, the defunct Office of the Commissioner of Lands and the Directorate of Survey, were public offices not party to the suit, and therefore declined to award costs against any party, ordering each party to bear its own costs.
Legal principles established
#- Sanctity of title is not a shield for fraud, illegality or unjust enrichment at public expense
- Where a registered proprietor's root of title is challenged, the proprietor must prove the legality of the acquisition beyond the title instrument
- Land law does not permit duplication of deed plans and grants over the same parcel
Court orders
#- 1.A declaration that the letter of allotment dated 3/11/1997 allocating to the 2nd defendant Land Reference Number 209/6238 is null and void, and the same is cancelled
- 2.A declaration that Grant Number 74856 registered on 21/11/1997 in respect of Land Reference Number 209/6238 in the name of the 2nd defendant is null and void, and the same is cancelled
- 3.A declaration that the transfer of Land Reference Number 209/6238 by the 2nd defendant to the 3rd defendant is null and void
- 4.An order cancelling and/or revoking the title documents issued to the 2nd and 3rd defendants in respect of Land Reference Number 209/6238
- 5.The Chief Land Registrar ordered to register Land Reference Number 209/6238 comprised in Grant Number IR 19103 registered on 11/9/1962 and delineated on Survey Plan Number 79163 dated 1962 in the name of The Principal Secretary for the National Treasury to hold the same on behalf of the State Law Office
- 6.A permanent injunction restraining the defendants, their agents and/or servants against disposing, encumbering, wasting or trespassing on or interfering with Land Reference Number 209/6238
- 7.Parties shall bear their respective costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the validity of title to land; suit instituted by the anti-corruption agency pursuant to its constitutional and statutory mandate
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Wilson Gacanja & 3 others; Nairobi City Council (Interested Party) [2020] KEELC 318 (KLR)", Case Analysis (2020). Not stated in the judgment (plaint originally dated 14/1/2008, amended 15/4/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/318/eng@2020-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.