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ELCDismissedHCCC No. 3112 of 1997 (transferred to ELC Malindi)· [2020] KEELC 3759 (KLR)

Godfrey Karume & another v Commissioner of Lands & 18 others [2020] KEELC 3759 (KLR)

Environment and Land Court
6 February 2020
JOJ.O. Olola
3,488 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a landowner's bid to overturn a 1986 government takeover because he couldn't prove his titles were actually cancelled.

What this practically means

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Executive summary

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This first-instance suit, originally filed in 1997 in the High Court at Nairobi as HCCC No. 3112 of 1997 and transferred to the Environment and Land Court at Malindi, was brought by Godfrey Karume and Timothy Muchina Chege against 19 Defendants, largely officers of the Ministry of Lands and the Attorney General, plus a subsequent allottee joined as 19th Defendant. The Plaintiffs challenged the cancellation, by a Commissioner of Lands letter of 28th May 1986 and a Gazette Notice of 30th May 1986, of the 1st Plaintiff's registrations of four parcels at Kilifi (Kilifi/Jimba/204 and 326, Kilifi/Madeteni/475 and 600), seeking declarations that the cancellations and transfer to the Government on 22nd December 1986 were unconstitutional and void, rectification of the register, exemplary damages of Kshs 5,000,000 per acre with interest, construction-cost differences, and an injunction against the 19th Defendant. The Plaintiffs argued their titles were absolute and indefeasible under the Torrens System (Sections 14 and 143 of the repealed Registered Land Act). The 1st to 11th Defendants, in a defence filed by the Attorney General, admitted occupation but asserted the registrations were made by mistake because the Land Adjudication Act had been erroneously applied to Government land; they called no evidence, and the 12th to 19th Defendants did not appear. The 1st Plaintiff was the sole witness. Applying the Court of Appeal's exposition of the Torrens System in Charles Karaithe Kiarie, Olola J held that while the law recognises registration errors and obliges the State to compensate affected parties, the Plaintiff failed to prove his titles were actually cancelled, since the contemplated court application by the Attorney General was never shown to have occurred and he remained in occupation, even charging two parcels to banks. No right to compensation was established, and the suit was dismissed in its entirety with no order as to costs on 6th February 2020.

Key legal issues

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01

Indefeasibility of title under the Torrens System

Holding

The law recognises that errors can occur in registration even under the Torrens System, and where such error occurs the Government as keeper of the master record is obliged to compensate affected parties; however indefeasibility can be rebutted by proof of fraud or misrepresentation

Reasoning

The court adopted the Court of Appeal's exposition in Charles Karaithe Kiarie on the Torrens System, noting that while titles are presumed indefeasible, registration errors can occur and the State must remedy them. Here the Government asserted an error in applying the Land Adjudication Act to Government land and sought rectification, which the court treated as a lawful attempt to correct a registration mistake rather than an unconstitutional deprivation.

p. 5
02

Whether the titles were in fact cancelled and the Plaintiff deprived of property

Holding

No evidence established that the titles were actually cancelled; the Plaintiff remained in occupation and continued dealing with the land

Reasoning

The Commissioner's letter contemplated that on the Plaintiff's default, the Attorney General would apply to Court to cancel the titles. The Plaintiff produced no evidence that this occurred. He testified he remained in occupation and had charged two parcels to commercial banks, contradicting his claim of deprivation under Section 75 of the former Constitution.

p. 5
03

Entitlement to compensation of Kshs 5,000,000 per acre

Holding

Claim fails because no right to compensation was established

Reasoning

A claimant must establish an existing right to compensation. Since the Plaintiff remained in occupation and could use the parcels as loan collateral, no loss entitling him to compensation was proved. The damages claim was therefore unsupported by any demonstrated deprivation or loss.

p. 5

Legal principles established

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  • Under the Torrens System, a registered owner's title is absolute and indefeasible unless obtained by fraud, misrepresentation or a corrupt scheme to which the owner was party
  • A party claiming compensation must establish that a right to such claim exists

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Land Adjudication ActCap 284
  • Registered Land ActCap 300, Sections 14 and 143
  • Government Lands ActCap 280
  • Registration of Titles ActSection 23(1)
  • Land Registration ActSection 26(1)(a) and (b)
  • Constitution of Kenya (former)Section 75

Cases cited (1)

  • Charles Karaithe Kiarie & 2 Others -vs- Administrators of the Estate of John Wallace Muthame & 5 Others
    (2013) eKLR
Jurisdiction invoked
Original jurisdiction as first-instance suit transferred from the High Court of Kenya at Nairobi to the Environment and Land Court for trial and determination

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, "Godfrey Karume & another v Commissioner of Lands & 18 others [2020] KEELC 3759 (KLR)", Case Analysis (2020). HCCC No. 3112 of 1997 (transferred to ELC Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3759/eng@2020-02-06

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