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ELCPartially AllowedELC Petition No. 7 of 2017 (Formerly Nairobi Petition No. 195 of 2014)· [2020] KEELC 769 (KLR)

Moses Ole Kinaiya & 4 others v Moses Somoine Ole Sakuda & 6 others; County Government of Kajiado & another (Interested Parties) [2020] KEELC 769 (KLR)

Environment and Land Court of Kenya
26 October 2020
COChristine Ochieng
5,824 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court cancelled a questionable land title in Kajiado, ruling that flawed land acquisition defeats ownership claims, especially involving community land.

What this practically means

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Executive summary

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The five Petitioners, members of the Olosho Oibor community, petitioned against the acquisition of land parcel Kajiado/Ntashart/5 by the 2nd and 3rd Respondents as trustees of the 4th Respondent, a community based organization, and the subsequent grant of an easement and payment of Kshs. 19,348,560 by Kenya Electricity Transmission Co. Ltd for the Isinya-Suswa transmission line. The suit land had been held by the defunct Ol Kejuado County Council, succeeded by the 1st Interested Party, in trust for the community. The court found the Petitioners had locus standi under Articles 22(2) and 258 of the Constitution. On the evidence, it held that the transfer to the 2nd and 3rd Respondents - trustees of an 18-member CBO - was effected despite a caution, using an unattested transfer form, without community consent or public participation, and in disregard of directives from the National Land Commission. Relying on Gitson Energy Limited v Francis Chachu Ganya and the Land Registration Act, the court held that title acquired through a flawed process, particularly over community land, cannot claim indefeasibility. It declined to declare the 1st Respondent, a former MP, unfit for public office for want of jurisdiction, refused the injunction and mandamus as overtaken by events, and declined damages because the compensation monies were shown, through an audit report, to have been used for community projects. The Petition was partially merited. The court ordered rectification cancelling the certificate of title and re-registration of the land in the name of the County Government of Kajiado in trust for the Olosho Oibor community, with costs to the Petitioners and Interested Parties borne by the 1st to 4th Respondents jointly and severally.

Key legal issues

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01

Locus standi of community members in constitutional petitions

Holding

Members of the Olosho Oibor community had standing under Articles 22(2) and 258 of the Constitution to institute the petition on behalf of the community

Reasoning

The court relied on Article 22(2)(a) and (b) and Article 258, which permit a person acting in the interest of a group or class to institute proceedings alleging constitutional contravention. Since the Petitioners were undisputed members of the community utilising the suit land, the 1st Respondent's objection to their standing was disregarded as immaterial.

p. 4
02

Violation of community land rights and fair administrative action

Holding

The transfer of the suit land to the 2nd and 3rd Respondents as trustees of an 18-member CBO without community consent or public participation violated the community's right to property and right to fair administrative action

Reasoning

Following Gitson Energy, registered community land vests in the community. The transfer was effected despite a caution, using an unattested transfer form, without public participation, and the easement was registered despite the NLC's directive to stop dealings. The Land Registrar acted contrary to objections from the County Government and NLC, rendering the process flawed and the community's rights infringed.

p. 5
03

Rectification of the register and cancellation of title

Holding

The certificate of title issued to the 2nd and 3rd Respondents was obtained illegally, unprocedurally and by mistake and was liable to cancellation with reversion to the County Government in trust for the community

Reasoning

Sections 26 and 80 of the Land Registration Act permit challenge of title acquired illegally, unprocedurally or through fraud or mistake. The acquisition ignored a caution, an unattested transfer was used, and the easement was registered despite NLC's stop directive. The court, associating with Mary Ruguru Njoroge, found the evidence justified rectification.

p. 6
04

Embezzlement of compensation monies

Holding

The Petitioners failed to prove that compensation monies were embezzled; the court accepted the 1st Respondent's evidence that funds were used for community projects

Reasoning

The burden of proof lay on the Petitioners to demonstrate the beneficiaries were fake and projects were not undertaken. They furnished no such evidence, while the 1st Respondent produced an audit report and evidence of projects. Accordingly the court accepted that Kshs. 19,348,560 paid by KETRACO was applied to development within the constituency.

p. 5

Legal principles established

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  • Indefeasibility of title is unavailable where the acquisition process was flawed, especially for community land held in trust by a county government
  • Title acquired illegally, unprocedurally or by mistake is liable to rectification under the Land Registration Act

Court orders

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  1. 1.An order of rectification cancelling the Certificate of Title for land parcel number Kajiado/Ntashart/5 in the name of Samson Tirike Seketian and Simeon Mboyo Partaati holding in trust for the Olosho Oibor Water Catchment Area
  2. 2.Registration of the suit land in the name of the County Government of Kajiado to hold in trust for the Olosho Oibor community
  3. 3.Costs of the Petition awarded to the Petitioners and the Interested Parties, to be borne by the 1st, 2nd, 3rd and 4th Respondents jointly and severally

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1) and (4), 3, 10(1), 20(1), (2) and (4), 22(1), 22(2), 23(1) and 3(a), (b), (e) and (f), 258, 40(3), 62, 63(1), (2), (3), (4) and (5), 75(1), (2) and (3), 165(3)(b)
  • Community Land ActSection 15
  • Land Registration ActSections 25, 26, 28 and 80

Cases cited (4)

  • Gitson Energy Limited v Francis Chachu Ganya & 6 others
    [2017] eKLR
  • Republic vs. Kenya National Examinations Council ex parte Gathenji & 8 Others
    Civil Appeal No 234 of 1996
  • Mary Ruguru Njoroge V John Samuel Gachuma Mbugua & 4 others
    (2014) eKLR
  • Gitobu Imanyara & 2 others V Attorney General
    (2016) eKLR
Jurisdiction invoked
Articles 22(1), 23(1) and 165(3)(b) of the Constitution of Kenya, 2010

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, "Moses Ole Kinaiya & 4 others v Moses Somoine Ole Sakuda & 6 others; County Government of Kajiado & another (Interested Parties) [2020] KEELC 769 (KLR)", Case Analysis (2020). ELC Petition No. 7 of 2017 (Formerly Nairobi Petition No. 195 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/769/eng@2020-10-26

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