The Presbyterian Foundation v Bernard Ole Mereu & 4 others [2020] KEELC 1869 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a title acquired over public land hosting schools, a police post and a chief's office, ruling public interest outweighs private ownership.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff validly acquired title to Ngong/Ngong/66
The title was obtained illegally, by mistake and unprocedurally; no Letter of Allotment or Deed Plan was produced and public utilities existed on the land at the time of registration
The Green Card showed the land was first registered in the name of Ol Kejuado County Council in 1964 with an easement noting reservation for a school. The repealed Government Lands Act required a Letter of Allotment and Deed Plan for alienation of public land, none of which was produced. The Transfer Form was signed by the Commissioner of Lands rather than the County Council. The Plaintiff also failed to disclose the existence of schools, a police post and chief's office on the land when obtaining title in 1999.
Whether the Plaintiff was entitled to a permanent injunction and damages for trespass
No; the Plaintiff failed to discharge the burden of proving trespass and had no legally acquired title to protect
The Plaintiff's own witnesses admitted government institutions operated on the land and that teachers were posted by the Teachers Service Commission. The 1st Defendant was the local chief performing lawful duties. Since the title itself was found to have been illegally and unprocedurally acquired, there was no lawful possession capable of being disturbed by trespass.
Whether the counterclaim for declaration of public land and cancellation of title should succeed
Yes; under sections 26(1)(b) and 80 of the Land Registration Act and section 143 of the repealed Registered Land Act, a title acquired illegally, unprocedurally or through misrepresentation may be cancelled and the register rectified
The court found the Defendants proved that the Certificate of Title was acquired illegally and unprocedurally. The statutory exceptions to indefeasibility in section 26(1)(b) of the Land Registration Act were engaged. Rectification under section 80 was therefore available, and the court declared the land public and ordered registration in favour of the Permanent Secretary, Treasury in trust for the public utilities.
Legal principles established
#- Acquisition of title is a process; indefeasibility cannot be claimed where the process was flawed, especially where public institutions occupy the land
- Public interest in land supersedes private interest
Court orders
#- 1.A declaration that land parcel number Ngong/Ngong/66 is public land
- 2.An order for rectification of the register of Ngong/Ngong/66 directing cancellation of the Plaintiff's name therefrom
- 3.The Land Registrar, Kajiado North directed to register the title to Ngong/Ngong/66 in the name of Permanent Secretary, Treasury to hold in trust for the Government of Kenya and issue a Certificate of Title to that effect
- 4.Costs of the suit including the Counterclaim awarded to the 1st and 4th Defendants
- 5.Stay of execution granted for 90 days
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) - not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kisumu Guest House Limited v L. Ouma & 12 others [2021] KEELC 1632 (KLR)[2021] KEELC 1632 (KLR)6 Oct 2021
Cite this brief
#Cite this brief
Caselaw, "The Presbyterian Foundation v Bernard Ole Mereu & 4 others [2020] KEELC 1869 (KLR)", Case Analysis (2020). ELC Case No. 724 of 2017 (Formerly Nairobi ELC Case No. 1564 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1869/eng@2020-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.