Muthithi Investments Company Limited v Commissioner of Prisons & another [2020] KEELC 3818 (KLR)
The bottom line
#A landowner lost its Murang'a plot because a 1963 gazette notice had reserved it for a juvenile remand home, making the title void.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit land was public land reserved for the Fort Hall Juvenile Remand Home
The Court found the suit land was excised from land designated for public use by Legal Notice No 751 of 1963, which was never degazetted, making the land public land unavailable for alienation.
Relying on the gazette notice, the 1972 PDP, the Registry Index Map, the joint surveyors' report and the court's site visit, the Court concluded the suit parcel fell within the boundaries of land designated for the Juvenile Remand Home. Being already alienated for public use, it was not unalienated Government land capable of allocation under the Government Lands Act.
Whether the Petitioner holds a valid title
The title was declared null and void as it flowed from an unlawful allocation of reserved public land, and was impeachable under Section 26(1)(b) of the Land Registration Act.
Since the initial allotment to Joheda Developers was unlawful, the allottee had nothing to transfer; the title conveyed to the Petitioner was invalid. Sections 143 of the Registered Land Act and 80 of the Land Registration Act empower the Court to cancel illegally acquired titles, and Article 40(6) withdraws constitutional protection from unlawfully acquired property.
Whether the Petitioner is a bona fide purchaser for value without notice
The Petitioner failed as the gazette notice reserving the land was published and in the public domain, so it was deemed to have notice of the reservation.
A bona fide purchaser must show purchase of an apparently valid title without notice of defects. The gazette notice had the effect of law and was a public document; the Petitioner ought to have known the land was reserved for the Juvenile Remand Home. Its title therefore enjoys neither statutory indefeasibility nor Article 40(3) protection.
Whether the Petitioner's rights under Article 40 were violated
No violation was found since the title was unlawfully acquired and unprotected.
Article 40 protects property lawfully acquired; by Article 40(6) its protection does not extend to property found to have been unlawfully acquired. Having found the allocation and title illegal, the Court held the threatened takeover could not amount to a constitutional violation of the Petitioner's property rights, though recourse lies against the original allottee.
Legal principles established
#- Any alienation of land reserved for a public purpose and issuance of title over it is null and void ab initio; such a title does not exist in law.
- A registered proprietor whose title is under challenge must prove the legality of acquisition beyond the instrument of title.
- A gazette notice is prima facie evidence of its due making and constitutes notice to the whole world.
Court orders
#- 1.The Petition fails and it is dismissed.
- 2.Declared that the suit land is public land having been alienated and reserved for public use vide the Legal Gazette Notice No 751 of 1963.
- 3.Declared that Commissioner of Lands/County Government of Murang'a had no powers to excise and allocate public land contrary to Statute and the Constitution.
- 4.Declared that the title documents/leasehold interest created in MURANG'A MUNICIPALITY BLOCK 2/525 is illegal and confers no proprietary interests to the Petitioner per Article 40(6) of the Constitution.
- 5.The title for MURANG'A MUNICIPALITY BLOCK 2/525 revoked/cancelled and the suit land reverted to Public land for the benefit of Murang'a Juvenile Remand Home.
- 6.The Petitioner, by itself, or its agents permanently restrained from interfering with the suit property known as Title No. MURANG'A MUNICIPALITY BLOCK 2/525.
- 7.The cross Petitioner is not entitled to the suit land and to that extent its cross petition is dismissed.
- 8.Each party to meet its own costs.
- Jurisdiction invoked
- Articles 19, 21, 22, 23 & 40(1) and (3) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthithi Investments Company Limited v Commissioner of Prisons & another [2020] KEELC 3818 (KLR)", Case Analysis (2020). Murang'a ELC Petition filed 19/3/2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3818/eng@2020-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.