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ELCPartially AllowedPetition dated 29th November, 2018 (Machakos)· [2020] KEELC 2607 (KLR)

Tinek Limited & another v National Land Commission & 4 others; Khalif Kurie Heris Engen & 2 others (Interested Parties) [2020] KEELC 2607 (KLR)

Environment and Land Court
8 May 2020
14,104 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~56 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled land titles traced to illegal public land allocation, but also quashed the NLC's decision for failing to give the owners a fair hearing.

What this practically means

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Executive summary

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The Petitioners challenged Gazette Notice No. 11714 of 9th November 2018, by which the National Land Commission (NLC), acting on a complaint by the 3rd Interested Party (the Ndeti family), directed the Chief Land Registrar to revoke the 1st Petitioner's title to L.R. No. 337/1645 and its eighteen sub-divisions. The Petitioners sought certiorari, injunction, prohibition, a declaration of indefeasible title, enforcement of a Kshs. 197,985,519 award for L.R. No. 337/3838, or alternatively compensation of Kshs. 322,790,787. The court framed six issues and found, first, that the Petition was properly before the ELC, which may issue judicial review orders in rights-based petitions. Secondly, the NLC had jurisdiction under Article 68(c)(v) and Section 14 of the NLC Act to review grants over land originally public, since the 1st Petitioner's 99-year grant had the government as head lessor. Thirdly, however, the NLC's decision of 28th April 2017 was procedurally flawed: it failed to exhibit proceedings or submissions proving the Petitioners and Interested Parties were heard, breaching Articles 47 and 50, and the decision was quashed. Fourthly, on the validity of the title itself, the 1st Petitioner produced no letter of allotment, approved Part Development Plan or proof of stand premium payment; the grant issued directly from the President without demonstrated lawful alienation, rendering it void. Indefeasibility under Article 40(6) does not protect unlawfully acquired property, and no valid title passed to the 2nd Petitioner or the Interested Parties, who also produced no evidence of purchase. The court quashed the Gazette Notice but also declared all the Petitioners' titles null and void and cancelled them, declining compensation; each party was ordered to bear its own costs.

Key legal issues

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01

Validity of the Petition as a vehicle combining rights enforcement and judicial review

Holding

The Petition was validly before the court since remedies under Article 23(3) and Section 13(7) ELC Act include declarations and judicial review orders

Reasoning

The court held that Article 23(3) permits judicial review orders in Bill of Rights petitions, and Section 13(7) of the ELC Act empowers it to issue prerogative, declaratory orders and compensation. Since the Petitioners sought a declaration of rights violation and certiorari, the Petition was properly before the court notwithstanding the argument that judicial review or an appeal was the only route.

p. 9
02

Jurisdiction of the National Land Commission over the suit land

Holding

NLC had jurisdiction because the land was originally public land allocated by the government; its mandate lapsed on 1st May, 2017 but covered such grants

Reasoning

Applying its own decision in Dakawou Transporters and Compar Investments, the court held that Section 14 of the NLC Act empowers review of all grants of land initially public, even where currently private. The 1st Petitioner's 99-year grant had the government as head lessor, hence the land was previously public land and within NLC's review mandate.

p. 12
03

Fair hearing before the NLC

Holding

The NLC's decision was tainted by procedural impropriety because it failed to exhibit proceedings or submissions showing the parties were heard

Reasoning

Under Articles 47 and 50 and the Fair Administrative Action Act principles, a party likely to be affected must be heard. The Commission claimed the Petitioners filed submissions on 12th October, 2016 but exhibited neither the proceedings nor the submissions. Having failed to demonstrate a hearing, the Commission denied the Petitioners and Interested Parties an opportunity to present their case, warranting certiorari.

p. 13
04

Validity of the 1st Petitioner's title

Holding

The Grant was issued illegally and is void, as the 1st Petitioner had no letter of allotment, approved PDP or evidence of stand premium payment

Reasoning

The 1st Petitioner relied only on the Grant; no letter of allotment, authority to allocate or approved Part Development Plan linked to it was produced. The allotment letter introduced late was in the name of Lucy Njeri Mwangi with no explained connection to the 1st Petitioner. The grant issued directly from the President without proof of lawful alienation, rendering it a nullity under Macfoy.

p. 15
05

Bona fide purchaser claim

Holding

No evidence of purchase or payment was produced; in any event, no title passed from a void title

Reasoning

The Petitioners and Interested Parties claimed to be innocent purchasers for value but produced no sale agreements or proof of purchase price. Even assuming bona fides, the root title being a nullity, nothing could pass. Citing Arthi Highway Developers, a purchaser cannot take free of legal rights where the transferor had no valid title.

p. 16

Legal principles established

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  • The NLC's mandate under Article 68(c)(v) and Section 14 of the NLC Act covers review of all grants of land originally public land, including grants registered in private names, but excludes Trust Land/Community Land.
  • A registered proprietor whose root of title is under challenge must prove the legality of the acquisition beyond the instrument of title.
  • Indefeasibility of title under Section 26 of the Land Registration Act is subject to Article 40(6) of the Constitution.
  • No valid title passes from a void title; a subsequent purchaser cannot acquire better title than the void root.

Court orders

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  1. 1.An order of certiorari to remove to this court and quash the decision of the 1st Respondent dated 28th April, 2017 and the Gazette Notice No. 11714 published on 9th November, 2018
  2. 2.The Petitioners' title to Land Reference number 337/1645 and the subsequent titles L.R. Nos. 337/3821-3838 (both inclusive) are declared null and void and cancelled forthwith
  3. 3.A declaration that the 1st and 5th Respondents be directed to enforce an award of Kshs. 197,985,519 with respect to L.R. No. 337/3838 is declined
  4. 4.A declaration that the 1st Petitioner be compensated to the tune of Kshs. 322,790,787 is declined
  5. 5.Each party to bear its/his own costs
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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, "Tinek Limited & another v National Land Commission & 4 others; Khalif Kurie Heris Engen & 2 others (Interested Parties) [2020] KEELC 2607 (KLR)", Case Analysis (2020). Petition dated 29th November, 2018 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2607/eng@2020-05-08

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