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ELCDismissedELC Petition Case No. 5 of 2019· [2020] KEELC 570 (KLR)

Springfield Farmers Cooperative Society Ltd v Attorney General & another [2020] KEELC 570 (KLR)

Environment and Land Court
24 November 2020
NMN.A. Matheka
2,231 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a cooperative's land rights claim because a letter of allotment is not proof of land ownership in Kenya.

What this practically means

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Executive summary

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The petitioner, a cooperative society, filed a constitutional petition alleging that the Deputy County Commissioner, Likuyani Sub County, unlawfully hived off approximately one acre of land parcel No. Kakamega/Kongoni/327 - which it claimed as allottee since 1969 - fenced it, erected a gate and evicted tenants, to build his official residence, without notice, participation or compulsory acquisition and compensation, violating its rights to property, fair administrative action and dignity. The respondents countered that the parcel remains registered under the Settlement Fund Trustee, that a letter of allotment is not title, that the land was set aside as a public utility in 1976, that allotment conditions were unfulfilled, and that the petitioner's officials participated in meetings resolving the land's use; further, that suit against an officer acting officially should lie against the Attorney General. The court, per N.A. Matheka J, found the certificate of official search showed the Settlement Fund Trustee as registered owner, that the petitioner failed to establish legal ownership, and that its Chairman attended and acquiesced in the meetings of 10th July 2018, 25th July 2018 and 26th October 2018. Holding the petitioner's fair trial rights unimpaired and the petition unmerited, the court dismissed the petition with costs on 24th November 2020.

Key legal issues

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01

Whether the petitioner's right to property under Article 40 was infringed

Holding

No infringement; the petitioner is not the registered owner of the suit parcel, which remains registered under the Settlement Fund Trustee, and an allotment letter confers no title.

Reasoning

The court examined the certificate of official search and found the suit parcel's current registered owner to be the Settlement Fund Trustee, not the petitioner. Relying on authority that a letter of allotment is transient and not a title, the petitioner could not invoke Article 40 or Section 26(1) of the Land Registration Act. The land had also been set aside as a public utility in 1976 and allotment conditions were allegedly unfulfilled.

p. 3
02

Whether the petitioner was denied fair administrative action and a fair hearing

Holding

No; the petitioner's officials, including its Chairman, attended and participated in the meetings at which the use of one acre for the residence was agreed.

Reasoning

The court found that all-leaders meetings held on 10th July 2018 and 26th October 2018 resolved to put the Deputy County Commissioner's residence on the public utility land, and that on 25th July 2018 the petitioner's officials, after lengthy deliberations, agreed to withdraw objections to hiving off one acre. The Chairman's attendance, as captured in minutes, defeated the claim of exclusion and denial of the right to be heard.

p. 3
03

Whether an ordinary land dispute was improperly elevated into a constitutional petition

Holding

The petition was framed as a rights violation but was in substance a land dispute; in any event it failed on the evidence.

Reasoning

The respondents argued the petition was a disguised civil land dispute improperly clothed as a constitutional issue. The court did not dismiss the petition on this basis, instead determining it on the merits, finding that the petitioner lacked registered ownership and that its representatives had acquiesced in the meetings, rendering the petition unmerited.

p. 3

Legal principles established

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  • A letter of allotment is not proof of title to land; only registered owners enjoy the constitutional protection of the right to property.
  • Where a public officer acts in an official capacity, the proper course is to sue the Attorney General or the officer, not the individual officer in their personal capacity.

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs of the petition awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(1), 2(1), 2(5), 3, 10, 22(1), 22(2), 258(1), 258(2), 28, 40, 47, 65, 27(4)
  • Land Registration ActSection 26(1)
  • Land Acquisition Act (Cap 295) (now repealed)Section 3
  • Universal Declaration of Human Rights (1948)Article 17(1) and 17(2)

Cases cited (6)

  • John Mukora Wachira & Others vs. Minister of Lands & Others
    Petition No. 82 of 2010
  • Evans Kafusi Mcharo vs. Permanent Secretary Ministry of Roads, Public Works and Housing and Another
    (2013) eKLR
  • Stephen Mburu & 4 Others vs. Comat Merchants Limited & Another
    [2012] eKLR
  • Kimunai Ole Kimeiwa & 5 Others vs. Joseph Motari (The then District Commissioner Rongai District) & 3 others
    (2019) eKLR
  • R vs Chief Immigration Officer
    (1976) 3 AER 843
  • Republic vs Council of Legal Education Ex-parte Nyabira Oguta
    (2016) eKLR
Jurisdiction invoked
Articles 22(1) and 258(1) of the Constitution of Kenya, 2010 (constitutional petition on alleged violation of fundamental rights)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Springfield Farmers Cooperative Society Ltd v Attorney General & another [2020] KEELC 570 (KLR)", Case Analysis (2020). ELC Petition Case No. 5 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/570/eng@2020-11-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.