Kenya Anti-Corruption Commission v Frann Investments Limited & 6 others [2020] KEELC 402 (KLR)
The bottom line
#Kenya's High Court-level land court cancelled titles to Mombasa plots originally set aside for a customs house, ruling public-purpose land cannot be privately allocated.
What this practically means
#Executive summary
#Key legal issues
#Whether land set apart for a public purpose (customs house) but without a title or allotment letter could be alienated to a private individual
Such land is not unalienated Government land and cannot be allocated for private use; it was set apart as a customs house and never released by the Customs Department
The court read the GLA definition of 'unalienated Government land' purposively, holding that land assigned to a public purpose apparent from survey plans, PDPs or visible on the ground is alienated Government land. Otherwise roads, hospitals, schools and courts could be grabbed merely because no title issued. The 1922 survey plan showed the land as a customs house, houses stood on it, and the Customs Department never surrendered it.
Whether the Commissioner of Lands (7th defendant) had power to allocate the land
He did not; even assuming the land was unalienated, allocation of unalienated Government land was a presidential power under section 3 GLA and the delegation to the Commissioner did not cover private grants
Section 3 of the GLA vested power to make grants of unalienated Government land in the President. The delegated powers to the Commissioner were limited to specific categories (religious, charitable, educational, town planning, local authorities, etc.), none of which covered allocation to a private individual in his discretion. The 7th defendant therefore acted illegally, and as he signed the grant, the acts of his subordinates bound him.
Whether the 1st and 2nd defendants were innocent purchasers for value
No; the 2nd defendant worked for the Customs Department/KRA and knew or ought to have known the land held a customs house, and his knowledge is imputed to the 1st defendant company whose directors were his family
Mr. Wahome served the Customs Department as a preventive officer from 1964/1965 to 1997; given his seniority he must have known of the customs houses in his area of jurisdiction, and due diligence on the survey map and the houses on the land would have revealed the position. The 1st defendant, incorporated with him and his family as subscribers, is deemed to share that knowledge, and the transfer to it had no proven consideration and was suspicious.
Whether the suit was res judicata or barred by the Macro Insurance Brokers judgment and the Frann Investment judicial review petition
No; the Macro Insurance statement about LR Nos. 3653 and 3654 was obiter in a suit where KRA was not a party, and the Petition No. 63 of 2012 decision left title's veracity for determination by this court
Maraga J's finding in HCCC No. 254 of 2000 was made obiter within a vendor-purchaser refund dispute and KRA was not a party, so no determination of KRA's interest could be made. In Petition No. 63 of 2012 Mureithi J only held the Registrar of Titles lacked power to revoke the title, expressly leaving revocation to due process and the pending ELC suits.
Whether KRA waived its rights or acquiesced
No; KRA consistently asserted its interest, planned the property, and published a caveat emptor notice naming the titles in 2005
KRA believed the title remained MN/III/293, engaged surveyors and the District Physical Planner, placed a notice in the Daily Nation on 21 November 2001, and published a caveat emptor on 5 October 2005 specifically mentioning all the titles. The 1st defendant developed the land after these steps and at its own risk; the solution would have been to sue KRA to assert title.
Whether the renumbering of the parcel from MN/III/293 to MN/III/2974 was proper
It was a scheme to conceal the original number and the existence of the customs house
The land already had a surveyed number recorded in the survey maps; there was no reason to resurvey solely to issue a new number. The change was orchestrated to cover up the fact that the land was LR No. MN/III/293 with a customs house, and neither Mr. Wahome nor the defendants offered any explanation for the new number.
Legal principles established
#- Government land set apart for a specific public purpose remains alienated (non-alienable) Government land even where no allotment letter or title has been issued over it
- Only the President could alienate unalienated Government land under section 3 of the Government Lands Act, and the delegation to the Commissioner of Lands did not extend to allocations to private individuals
- The doctrine of innocent purchaser for value cannot sanitise a title that is null and void ab initio
- All downstream transactions founded on a null title are themselves null and void
- Development undertaken on disputed land does not sanitise an invalid title
- A public officer alleged to have committed fraud can be sued personally notwithstanding that he acted in an official capacity
Court orders
#- 1.Declaration that the conversion and renumbering of LR No. MN/III/293 to LR No. MN/III/2974 and creation of the subdivisions were ultra vires, irregular, fraudulent and illegal, and null and void
- 2.Declaration that the making of a grant of LR No. MN/III/2974 to the 2nd defendant was ultra vires the 7th defendant's statutory powers, irregular, fraudulent, illegal and null and void
- 3.Rectification of the register by cancellation of the Grant of LR No. MN/III/2974 to the 2nd defendant dated 29 July 1996 and registered 4 October 1996
- 4.Rectification of the register by cancellation of the Transfer dated 11 April 2007 registered 19 April 2007 and of the Certificates of Title for LR Nos. MN/III/3650-3659
- 5.Permanent injunction restraining the 1st-6th defendants from dealing with the suit properties other than by transfer or surrender to the Kenya Revenue Authority and/or the Government of Kenya
- 6.General damages of KShs. 1,000,000/= against the 7th defendant for fraud and breach of fiduciary duty
- 7.1st-6th defendants to give vacant possession within 30 days and remove their developments within 30 days at their own cost, failing which the plaintiff/public entity may keep or remove them with costs passed to the 1st-6th defendants jointly and/or severally
- 8.Costs to be paid jointly and/or severally by the 1st-7th defendants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution over public land recovery suits (suits commenced under the Anti-Corruption and Economic Crimes Act, No. 3 of 2003)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Anti-Corruption Commission v Frann Investments Limited & 6 others [2020] KEELC 402 (KLR)", Case Analysis (2020). Mombasa ELC Nos. 215-224 of 2009 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/402/eng@2020-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.