Nathan Waliaula Munoko v Attorney General (Sued on behalf of the Cabinet Secretary Ministry of Lands, Housing and Urban Development) & 3 others [2020] KEELC 1736 (KLR)
The bottom line
#The court returned a family's Kilifi land to its rightful owner after the government wrongly cancelled his 1979 title and re-allocated the parcel to someone else.
What this practically means
#Executive summary
#Key legal issues
#Effect of surrender of title on government promise of re-issuance
The Plaintiff acquired a legitimate expectation that the land still belonged to him and that a new title would issue after surrender
The Plaintiff acquired title in 1979, took possession, used it and only surrendered it on the government's representation that a proper title would be issued, reinforced by a Letter of Allotment. He was therefore entitled either to the land or to compensation, following Joseph Manga Mugwe v AG.
Validity of allocation to the 2nd Defendant
The allocation and all subsequent transfers were without basis as there was no evidence the land was ever vested in the Settlement Fund Trustees
Nothing demonstrated how land registered in the Plaintiff's name in 1979 came to vest in the Settlement Fund Trustees in 1986. No evidence showed the Plaintiff was heard before the new register was opened and the 2nd Defendant registered in 2000. The allocation and consequent transfers were therefore irregular and could not stand.
Effect of the Malindi Petition No. 11 of 2012 judgment
The earlier judgment could not bind the Plaintiff as he was not a party and his title was not considered, making it per incuriam
The 4th Defendant relied on a prior judgment declaring it owner of the suit property, but the Plaintiff was not a party to those proceedings and the facts of his title were not placed before that court. The decision was therefore arrived at per incuriam and offered no protection to the 4th Defendant against this claim.
Priority of competing titles
The Plaintiff's first-in-time title prevails since it was never cancelled
There was no cancellation of the Plaintiff's title before the new one was issued to the 2nd Defendant. Where the Commissioner of Lands issues two titles over the same parcel by mistake, the first in time prevails because without cancellation the original title retains its sanctity.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation to which the proprietor is a party, or illegal, unprocedural or corrupt acquisition
- A government-issued title can only be cancelled after the holder has been heard and in accordance with the law
- Where the Commissioner of Lands issues two titles over the same parcel by mistake, the first in time prevails
Court orders
#- 1.Judgment entered for the Plaintiff as prayed in the Plaint
- 2.No award of general damages for fraud
- 3.No award of mesne profits
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over title to land (Article 162(2)(b) Constitution; not expressly cited in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nathan Waliaula Munoko v Attorney General (Sued on behalf of the Cabinet Secretary Ministry of Lands, Housing and Urban Development) & 3 others [2020] KEELC 1736 (KLR)", Case Analysis (2020). Malindi ELC Case ( pleadings referenced as Plaint dated 31st January 2017; exact number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1736/eng@2020-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.