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ELCAllowedELC Case No. 1411 of 2016· [2020] KEELC 3235 (KLR)

Peter Njoroge Regeru v County Government of Kiambu & another [2020] KEELC 3235 (KLR)

Environment and Land Court
5 March 2020
KBK. BOR
1,758 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that the National Land Commission cannot revoke your land title after May 2017, and protected an owner against county government encroachment.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of L.R. Muguga/Gitaru/1042, sued the County Government of Kiambu and the National Land Commission after his land was fenced off and his title purportedly revoked. His title had been recognised in High Court Constitutional Petition No. 584 of 2012 (Majanja J), which ordered rectification of Gazette Notice 3788 of 26/5/2006 to include his parcel among land to be acquired for the Nairobi Southern Bypass. Following a successful review by Mumbi J, the plot was excluded from acquisition by Gazette Notice 3236 of 16/5/2014, but the Plaintiff was denied possession and the 1st Defendant's agents fenced off the property. Later, Gazette Notice 6862 of 17/7/2017 issued by the 2nd Defendant revoked his title on the ground that the land was reserved for public utility. The 2nd Defendant did not participate; the 1st Defendant filed a defence denying any development but adduced no evidence or submissions. The court held that the Plaintiff's title had already been judicially determined and never appealed or set aside, that the Commission's statutory mandate to review grants of public land lapsed in May 2017, and that the National Land Commission Act conferred no power to revoke titles. Judgment was entered for the Plaintiff on prayers (a), (b) and (c) of the amended plaint, with costs against both Defendants.

Key legal issues

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01

Whether the Plaintiff proved his claim to the Suit Property and interference with it

Holding

The court found the Plaintiff's title had already been recognised in High Court Constitutional Petition No. 584 of 2012 and that despite those court orders the 1st Defendant's agents encroached on and fenced off the land; the case was proved on a balance of probabilities.

Reasoning

The Plaintiff produced his green card, certificate of lease, and the judgment and decree in Petition 584 of 2012 which recognised his title and ordered compensation. The land was excluded from acquisition by Gazette Notice 3236 of 16/5/2014. Photographs showed the property fenced off, which the Plaintiff attributed to the 1st Defendant, who filed no evidence or submissions.

p. 2
02

Whether the National Land Commission could revoke the Plaintiff's title by Gazette Notice 6862 dated 17/7/2017

Holding

The revocation was of no effect: the Commission's review mandate had lapsed in May 2017 and the Act conferred no power to revoke titles.

Reasoning

The Plaintiff submitted, and the court accepted, that the Commission's mandate to review grants of public land to determine their legality or propriety lapsed in May 2017, and that under the law the Commission could only recommend revocation to the land registrar. The notice also revoked the title without affording the Plaintiff a hearing.

p. 2

Legal principles established

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  • The National Land Commission's mandate to review grants of public land to establish their legality or propriety lapsed in May 2017, after which it could not revoke titles.
  • The National Land Commission Act did not grant the Commission power to revoke titles; it could only recommend revocation to the land registrar.
  • A party bound by an unappealed, un-set-aside judgment cannot relitigate rights already determined by that judgment.

Court orders

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  1. 1.Grants prayers (a), (b) and (c) of the Amended Plaint dated 2/11/2018 (removal of the fence on the Suit Property; nullification of Gazette Notice 6862 dated 17/7/2017 cancelling the Plaintiff's title; permanent injunction restraining the Defendants from entering or interfering with the Plaintiff's quiet user of the Suit Property)
  2. 2.Plaintiff awarded the costs of suit to be borne by both Defendants

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • National Land Commission ActSection 14

Cases cited (1)

  • George Gitonga Gachuhi and 4 Others v the Commissioner of Lands and 6 Others
    High Court Constitutional and Human Rights Division Petition No. 584 of 2012
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Constitution Article 162(2)); plaintiff invoked Article 40 protection of property rights

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, "Peter Njoroge Regeru v County Government of Kiambu & another [2020] KEELC 3235 (KLR)", Case Analysis (2020). ELC Case No. 1411 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3235/eng@2020-03-05

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