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ELCPartially AllowedConsolidated Petitions: ELC Petition No. 50 of 2018 and ELC Petition No. 126 of 2017· [2020] KEELC 1678 (KLR)

Samuel Wainaina Kioi & Anne Wangechi Kimani (Suing as Vice Chairman and Secretary respectively of Mwalimu Farm Owners Association on behalf of its members) v Registered Trustees, Capuchin Fransiscan Fathers Kenya,County Government of Kiambu,National Land Commission,Land Registrar, Thika & Attorney General (Environment & Land Case 9 of 2018) [2020] KEELC 1678 (KLR)

Environment and Land Court of Kenya
16 July 2020
8,643 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a church's title to school land, confirming that land reserved for public use cannot be privately allocated, even by the National Land Commission.

What this practically means

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Executive summary

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Two consolidated petitions concerned Land Parcel Ruiru East Block 3/244, originally set aside as public utility land for a secondary school within the Mwalimu Farm scheme. Mwalimu Farm Owners Association officials (Samuel Wanaina Kinoi and Anne Wangechi) petitioned for a declaration that the transfer and allocation of the parcel to Thika Trinity Presbyterian Church Trustee was illegal, cancellation of its title, and a permanent injunction. The Trustee cross-petitioned, claiming an indefeasible title and infringement of its right to property, alleging it lawfully bought L.R 3/2700 from Mwalimu Investment Company Limited and accepted a swap of that land for the suit property, and sought restoration of its original parcel and damages. The court first held the Petitioners had locus standi, citing the liberal standing regime of Article 258. It found the suit property was surrendered to the government upon implementation of the subdivision in the 1980s and is public land. Although the Trustee was a bona fide purchaser of L.R 3/2700, it could not be a bona fide purchaser of the suit property because Mwalimu Sukari Company Limited (which the court held was the successor of Mwalimu Investment Company Limited) had no valid title to or authority over public land. The National Land Commission was held to have erred in upholding the Trustee's title, since land reserved for education cannot be allocated under Section 12(2) of the Land Act. Both petitions partially succeeded: the Trustee's title was cancelled and its allocation declared illegal, with a permanent injunction issued, while its original parcel L.R 3/2700 was ordered re-allocated back to it. The National Land Commission bore the Petitioners' costs; on the Trustee's petition, each party bore its own costs. Judgment delivered virtually at Thika on 16th July 2020 by L. Gacheru, Judge.

Key legal issues

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01

Whether the Petitioners (officials of Mwalimu Farm Owners Association) had locus standi

Holding

They had locus standi; the Association was registered in 2011, change of officials was evidenced, and Article 258 allows any person or association acting in the interest of members or the public to sue

Reasoning

The Association produced a certificate of registration and certificates of change of officials dated 22nd April 2016 and 3rd October 2018 confirming the suing officials. The 1st Respondent, which alleged the Association was an unlawful society, produced no contrary evidence. Further, Article 258 of the Constitution opens standing widely, permitting associations acting in members' interests and persons acting in the public interest to institute constitutional proceedings.

p. 6
02

Whether the suit property was surrendered and is public land

Holding

Yes; the property was surrendered upon implementation of the subdivision in the 1980s and is public land reserved for a secondary school

Reasoning

Subdivision regulations required a percentage of land to be set aside for public utility. Upon approval and implementation of the subdivision scheme, the public utility plots were deemed surrendered. The Registry Index Map from Survey of Kenya showed the property as public utility land for a secondary school, and the National Land Commission itself recognized it as public land.

p. 7
03

Whether the 1st Respondent was a bona fide purchaser for value with indefeasible title

Holding

No; although a bona fide purchaser of L.R 3/2700, it could not be a bona fide purchaser of the suit property because Mwalimu Sukari Company Limited had no valid title or authority to swap public land

Reasoning

The Court found Mwalimu Investment Company Limited changed to Mwalimu Sukari Company Limited (same signatory, same address). However, the suit property having become public land on subdivision, only the Commissioner of Lands could allocate it. The vendor lacked apparent valid title, an essential element of the bona fide purchaser doctrine, and indefeasibility cannot protect titles created in flagrant breach of statute.

p. 9
04

Whether the National Land Commission was right to uphold the 1st Respondent's title

Holding

No; land set aside for education falls within Section 12(2)(d) of the Land Act and could not be allocated, including by exchange

Reasoning

Although the Commission's intention was arguably noble, treating the matter as an exchange of properties of equal value, the law prohibits allocation of land reserved for education and other strategic public uses. The Commission disregarded the submissions of the 2nd Respondent and the Petitioners and gazetted the property to a private entity without lawful basis.

p. 9
05

What relief should issue to each party

Holding

Petitioners granted declaration of illegality, cancellation of title and injunction but not transfer to themselves; 1st Respondent granted re-allocation of its original L.R 3/2700

Reasoning

The Petitioners' declaration and cancellation prayers were merited, but public land vests in the National or County Government, not the Association. The 1st Respondent lawfully purchased L.R 3/2700 from Mwalimu Investment Company, which had authority to sell it; since the unlawful swap left that land unused, it should revert to the 1st Respondent, the Court invoking Section 3A of the Civil Procedure Act to cure the erroneous reference to L.R 3/244.

p. 10

Legal principles established

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  • Once a subdivision scheme is approved and implemented on the ground, public utility plots are deemed surrendered to the government and become public land, even absent a registered instrument of surrender
  • Locus standi in constitutional petitions is liberally construed under Article 258; any person with bona fide grounds that the Constitution has been contravened may sue
  • Bona fide purchaser protection requires that the vendor had apparent valid title; a purchaser from one without title cannot invoke the doctrine, and indefeasibility cannot camouflage an unlawful creation of title
  • The National Land Commission cannot allocate public land reserved for education or other strategic public uses under Section 12(2) of the Land Act, even by way of exchange

Court orders

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  1. 1.A declaration that the purported transfer and allocation of Land Parcel No. Ruiru East Block 3/244 to the 1st Respondent is illegal.
  2. 2.An order of cancellation of the title held by the 1st Respondent and a correction of the register removing the 1st Respondent.
  3. 3.A permanent injunction restraining the 1st Respondent from disposing off, subdividing, excavating, erecting buildings or in any other way interfering with all that land parcel known as Ruiru East Block 3/244 (aka 2700).
  4. 4.An order that title Number Ruiru/Ruiru East Block 3/2700, which was originally purchased by the 1st Respondent, be and is hereby re-allocated back to the 1st Respondent.
  5. 5.The 3rd Respondent to bear the costs of the Petitioners' suit.
  6. 6.On the 1st Respondent's Petition, each party to bear its own costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 35, 40, 46, 47, 61(4), 62, 258
  • Land Act, No. 6 of 2012Sections 9 and 12(1) and 12(2)
  • Civil Procedure ActSection 3A
  • Societies Actregistration and exemption provisions (general reference)
  • Local Government Act (Cap. 265)Section 185 (as referenced in quoted authority)
  • Registered Land Act (Cap. 300)referenced in quoted authority on indefeasibility
  • Civil Procedure RulesOrder 21 rule 1 (waived for virtual delivery of judgment)

Cases cited (6)

  • Sollo Nzuki v Salaries and Remuneration Commission & 2 others
    [2019] eKLR
  • National Land Commission v Afrison Export Import Limited & 10 others
    [2019] eKLR
  • Weston Gitonga & 10 others v Peter Rugu Gikanga & another
    [2017] eKLR
  • Katende v. Haridar & Company Limited
    [2008] 2 E.A. 173
  • Kenya Anti-Corruption Commission v Ahmed Karama Said & 2 Others
    [2011] eKLR
  • Champaklal Ramji Shah & 3 Others v The Attorney-General & Another
    Mombasa HCCC No. 145 of 1997
Jurisdiction invoked
Original constitutional jurisdiction under the Constitution of Kenya 2010, including Article 258 (enforcement of the Constitution) and Article 162(2) (Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samuel Wainaina Kioi & Anne Wangechi Kimani (Suing as Vice Chairman and Secretary respectively of Mwalimu Farm Owners Association on behalf of its members) v Registered Trustees, Capuchin Fransiscan Fathers Kenya,County Government of Kiambu,National Land Commission,Land Registrar, Thika & Attorney General (Environment & Land Case 9 of 2018) [2020] KEELC 1678 (KLR)", Case Analysis (2020). Consolidated Petitions: ELC Petition No. 50 of 2018 and ELC Petition No. 126 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1678/eng@2020-07-16

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