Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Petition Case No. 3 of 2017· [2020] KEELC 1621 (KLR)

Yako Supermarket (K) Limited & another v National Lands Commission & 4 others [2020] KEELC 1621 (KLR)

Environment and Land Court
29 July 2020
NMN. A. Matheka
6,686 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

#

The court confirmed Kenya's National Land Commission can revoke titles over irregularly allocated public land, even when a registered buyer holds a title document.

What this practically means

#

Executive summary

#
The petitioners, Yako Supermarket (K) Limited and Sudhir Khetia, challenged the review determination of the National Land Commission dated 8th October 2015 which recommended revocation of their titles to Kakamega Town Block II/292 and Kakamega/Municipality Block II/252, parcels allegedly carved from land reserved as a playing field for Kakamega Primary School. They sought declarations that the parcels were private land outside the Commission's jurisdiction under section 14 of the National Land Commission Act, that their rights to fair administrative action, fair hearing and property had been violated, orders of certiorari and prohibition, an injunction, and general and exemplary damages. The respondents maintained the parcels were public land irregularly alienated and that the Commission acted within its statutory mandate. The court framed four issues: validity of the titles, infringement of rights, entitlement to compensation, and costs. It held that section 14(1) empowers the Commission to review grants of land converted from public to private tenure; that the suit parcels were public utility land reserved for the school and irregularly allocated; and that the petitioners were not bona fide purchasers for value without notice since due diligence would have revealed defects, including a pending dispute involving one vendor since 2004. The court found no violation of Articles 25, 47, 50(1) or 40 and dismissed the petition with costs to the respondents on 29th July 2020.

Key legal issues

#
01

Validity and lawfulness of the petitioners' titles

Holding

The titles were invalid; the suit parcels were public land reserved as a playing field for Kakamega Primary School and were irregularly and unlawfully alienated, and the petitioners were not bona fide purchasers for value without notice.

Reasoning

The court found the land fell within a planned playing field for a public school, hence public utility unavailable for allocation. The vendors' apparent titles were questionable: the 4th respondent had a civil dispute with Michael Odwoma since 2004, and registry records were missing. The petitioners failed the tests of due diligence and of vendors with apparent valid title set out in Katende and Samuel Kamere, so section 14(7) protection did not apply.

p. 8
02

Jurisdiction of the National Land Commission to review the grants

Holding

The 1st respondent had jurisdiction under section 14(1) of the National Land Commission Act because the review power extends to land converted from public to private tenure.

Reasoning

Relying on Holborn Properties and Compar Investments, the court held that leasehold registration as private land does not bar review where the land was initially public; the history of alienation is what matters. Section 14(1), read with Article 68(c)(v), permits review of grants of public land that has been converted to private land, whether before or after the 2010 Constitution.

p. 5
03

Whether the petitioners' rights to fair administrative action and fair hearing were violated

Holding

No violation; the petitioners were given notice, appeared with counsel, produced documents and made submissions before the review determination.

Reasoning

The court examined the 1st respondent's proceedings and found the petitioners were represented by counsel who produced extensive documentary evidence for both parcels and made submissions. Section 14(3) of the National Land Commission Act required notice and an opportunity to appear, which was accorded. Articles 25, 47 and 50(1) were therefore not breached.

p. 7
04

Whether the petitioners' right to property under Article 40 was infringed and whether compensation is due

Holding

No infringement; Article 40 does not protect property unlawfully acquired, so no compensation, certiorari, prohibition, injunction or damages were available.

Reasoning

Article 40(3) permits deprivation resulting from conversion of title in accordance with Chapter Five, and Article 40(6) does not protect unlawfully acquired property. Having found the allocation irregular and the petitioners not bona fide purchasers, the revocation did not violate Article 40, and no compensation or ancillary relief could issue.

p. 9

Legal principles established

#
  • The National Land Commission's mandate under section 14 of the National Land Commission Act extends to reviewing the procedures followed in the allocation of public land to private parties, before and after the promulgation of the 2010 Constitution, and it may direct the revocation of irregularly acquired grants.
  • No revocation of title shall be effected against a bona fide purchaser for value without notice of a defect in the title (section 14(7) of the National Land Commission Act).
  • A registered proprietor whose root of title is challenged must go beyond the title instrument to prove the legality of the acquisition.
  • Land occupied and utilised by a public institution as a playing field is public utility and not available for allocation.

Court orders

#
  1. 1.The petition is dismissed with costs to the respondents

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 19(1), 19(2)(a)&(c), 19(3)(a), 20(1), 20(3)(b), 21(1), 22(1), 23(1), 24(1), 25, 27, 40, 47, 50(1), 60(1)(b), 62(1), 64, 65, 67, 68(c)(v), 232(1), 249(1), 249(2), 162(2)(b)
  • Environment and Land Court ActSection 13
  • Constitution of Kenya (Practice and Procedure Rules), 2013Rule 2
  • National Land Commission Act, 2012Section 14(1)-(7)
  • Registration of Titles Act (repealed)Section 23(1)
  • Land Registration Act, No. 3 of 2012Sections 24, 25(1), 26(1)

Cases cited (8)

  • Japheth Kipkemboi Magut vs. National Land Commission and 2 others
    (2017) eKLR
  • Anarita Karimi Njeru
    (1976-80) 1 KLR 1272
  • Republic vs. National Land Commission, Ex-parte Holborn Properties Limited
    (2016) eKLR
  • Compar Investments Limited vs. National Land Commission & 3 others
    (2016) eKLR
  • Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura vs. Attorney General & 4 others
    (2017) eKLR
  • Katende vs. Haridar & Company Limited
    (2008) 2 E.A 173
  • Samuel Kamere vs Lands Registrar, Kajiado
    Civil Appeal Number 28 of 2005
  • Munyu Maina vs Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009
Jurisdiction invoked
Articles 22(1) and 23(1) of the Constitution of Kenya, 2010, as read with Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Yako Supermarket (K) Limited & another v National Lands Commission & 4 others [2020] KEELC 1621 (KLR)", Case Analysis (2020). ELC Petition Case No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1621/eng@2020-07-29

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