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ELCPartially AllowedLand Case No. 886 of 2016 (Formerly HCC 114 of 2009)· [2020] KEELC 3405 (KLR)

Kenya Anti-Corruption Commission v Peter Oloo Aringo & 3 others [2020] KEELC 3405 (KLR)

Environment and Land Court
28 February 2020
3,378 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a lease over railway land, confirming public land illegally allocated cannot pass good title to anyone.

What this practically means

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Executive summary

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The Kenya Anti-Corruption Commission sued Peter Oloo Aringo, Trans National Bank Ltd, Vyatu Limited and Wilson Gacanja, seeking declarations that the lease over Kisumu Municipality/Block 7/411 issued by the 4th Defendant to the 1st Defendant, and the subsequent charge, auction sale and transfer to the 3rd Defendant, were null and void, together with rectification of the register, a permanent injunction against the 3rd Defendant, and general damages for fraud against the 1st and 4th Defendants. The plaintiff alleged the parcel was part of railway land vested in Kenya Railways Corporation under successive legal notices and was fraudulently allocated without the Corporation's consent. The 1st and 4th Defendants denied fraud and pleaded due process and limitation; the 2nd Defendant pleaded that it took a regular title without notice of irregularity; the 3rd Defendant pleaded it bought in good faith at a public auction and paid Kshs. 3,340,000 in full. The court found, on the evidence of survey and lands officials, that the property was excised from vested railway land that was never degazetted, and that the Commissioner of Lands had no power to alienate it. Following Chemey Investments, Kipsirgoi Investments and James Joram Nyaga, the court declared the lease, charge, auction and certificate of lease void, ordered rectification of the register restoring the property to the Corporation, ordered the 2nd Defendant to refund the 3rd Defendant Kshs. 3,300,000 plus interest, and awarded the plaintiff costs against the 1st, 2nd and 4th Defendants. General damages and the injunction were not included in the final orders.

Key legal issues

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01

Vesting of the suit property in Kenya Railways Corporation

Holding

The suit property was excised from land vested in Kenya Railways Corporation under Legal Notices No. 440 of 1963, No. 20 of 1969 and No. 24 of 1986, and was never degazetted

Reasoning

PW1 and PW3 traced the parcel to Railway land, Block 7/365, held under a 1975 green card, and produced the three legal notices vesting the land successively in the East African Railways & Harbours Administration, the East African Railways Corporation and Kenya Railways Corporation. The court found the land had never been degazetted as KRC property.

p. 4
02

Validity of the allocation, lease, charge and transfer

Holding

The lease to the 1st Defendant was null and void ab initio; the subsequent charge to the 2nd Defendant, the auction sale and transfer to the 3rd Defendant, and the certificate of lease issued to the 3rd Defendant were likewise null and void and conferred no title

Reasoning

Because the Commissioner of Lands had no authority to alienate land reserved for Kenya Railways, the root title was defective and could pass no interest to subsequent chargees or purchasers. The defendants could not feign ignorance as the reservation was gazetted.

p. 5
03

Liability of the 2nd Defendant to refund the 3rd Defendant

Holding

The 2nd Defendant, having illegally charged and transferred the property by auction, is liable to refund the 3rd Defendant the auction purchase price with interest

Reasoning

The 3rd Defendant bought at a public auction conducted by the 2nd Defendant after the 1st Defendant defaulted on the loan. Since the transfer was held void, the court ordered the 2nd Defendant to refund the Kshs. 3,300,000 paid, with interest from filing of the suit, transferring the loss to the party responsible for the illegal charge and sale.

Legal principles established

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  • The Commissioner of Lands had no power to alienate land reserved and vested in Kenya Railways Corporation
  • Land gazetted and reserved for public use is not available for allocation, and parties dealing with it cannot claim ignorance of the law

Court orders

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  1. 1.Declaration that the issuance of a lease by the 4th Defendant to the 1st Defendant over Kisumu Municipality/Block 7/411 was null and void ab initio and ineffectual to confer any right, interest or title upon the 1st Defendant
  2. 2.Declaration that the subsequent charge, transfer of the suit property and issuance of a Certificate of Lease over Kisumu Municipality/Block 7/411 to the 3rd Defendant was null and void and ineffectual to confer a good title upon the 3rd Defendant
  3. 3.Order for rectification of the land register by cancellation of the lease over Kisumu Municipality/Block 7/411 and the Certificate of Lease issued to the 3rd Defendant so as to restore the suit property to the Corporation
  4. 4.Order that the 2nd Defendant refund the 3rd Defendant Kshs. 3,300,000 plus interest from the date of filing of the suit
  5. 5.Costs of the suit to the plaintiff, payable by the 1st, 2nd and 4th Defendants

Authorities

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Legislation

  • Legal Notice No. 440 of 1963vesting of land in General Manager, East African Railways & Harbours Administration
  • East African Railways Corporation Act, 1967Legal Notice No. 20 of 1969
  • Kenya Railways Corporation Act, Chapter 397Legal Notice No. 24 of 1986
  • Government Lands Act (Repealed)sections 2, 3 and 7
  • Physical Planning Act, Cap 286section 3
  • Registration of Titles Act, Cap 281referenced within quoted passage from James Joram Nyaga

Cases cited (3)

  • Chemey Investment Limited v Attorney General & 2 others
    [2018] eKLR
  • Kipsirgoi Investments Limited vs Kenya Anti-Corruption Commission
    High Court Civil Appeal No. 288 of 2010
  • James Joram Nyaga & Another v the Hon. Attorney General & Another
    [2007] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kenya Anti-Corruption Commission v Peter Oloo Aringo & 3 others [2020] KEELC 3405 (KLR)", Case Analysis (2020). Land Case No. 886 of 2016 (Formerly HCC 114 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3405/eng@2020-02-28

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