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ELCAllowedNot stated in the judgment (Plaint dated 23rd September 2008, amended 30th April 2010)· [2021] KEELC 331 (KLR)

Kenya Anti-Coruption Commission v Abel Sangonde Momanyi & another [2021] KEELC 331 (KLR)

Environment and Land Court of Kenya
9 December 2021
4,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This first-instance judgment of the Environment and Land Court at Kisii, delivered by J.M. Onyango J on 9th December 2021, resolved a suit commenced by Plaint dated 23rd September 2008 and amended on 30th April 2010, seeking a declaration that the lease and certificate of lease issued on 20th September 2002 over KISII BLOCK 3/434 to the 1st Defendant were ultra vires and fraudulent, rectification of the register, vacant possession, a permanent injunction, and general damages against the 2nd Defendant (the former Commissioner of Lands) for misfeasance in office. The Defendants did not attend hearing despite service, and the matter proceeded ex parte. The Plaintiff called three witnesses: an investigator, a physical planner, and a surveyor, who established through Gazette Notice No. 1937 of 31st May 1966 and Part Development Plan KSI/37/85/10 that the land was trust land vested in the Gusii County Council and reserved for a Community Development Centre. The court, adopting the seven-step statutory alienation procedure outlined in Ali Mohamed Dagane, found that none of the required steps was followed: there was no Council resolution, no approved Part Development Plan for sub-division, no gazette notice, no public auction, no allotment letter, no consideration paid, and no approved survey or beacon certificate. Relying on Daudi Kiptugen, the court held that the fraudulently procured title was null and void ab initio. The 2nd Defendant, having offered no evidence, was held liable for misfeasance in public office. Judgment was entered for the Plaintiff on all heads, with a declaration of nullity, permanent injunction, rectification of the register, general damages of Kshs. 1,000,000, and costs borne jointly and severally by the Defendants.

Key legal issues

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01

Whether the suit property is trust land vested in the County Council of Gusii

Holding

Found that KISII MUNICIPALITY/BLOCK 3/434, a subdivision of KISII MUNICIPALITY BLOCK 3/332, constitutes trust land vested in the County Council of Gusii under the Trust Land Act, reserved for a Community Development Centre via Gazette Notice No. 1937 of 31st May 1966 and Part Development Plan KSI/37/85/10.

Reasoning

PW1, an investigator, and PW2, a physical planner, gave oral testimony supported by the Gazette Notice and approved Part Development Plan showing the land was set apart as trust land and reserved for a Community Development Centre with a Nursery School, Community Hall, Homecraft Training Centre and staff offices. PW3 confirmed the purpose of the reservation had never changed. The court found this assertion supported by both oral and documentary evidence.

p. 3
02

Whether the Defendants acted fraudulently in alienating the suit property

Holding

Held that the 1st and 2nd Defendants acted fraudulently in alienating parcel KISII MUNICIPALITY BLOCK 3/332.

Reasoning

The court set out, per Cherono J in Ali Mohamed Dagane, the seven-step statutory procedure for disposal of government land. None of the steps was followed: no application or approval for sub-division, no fresh Part Development Plan, no gazette notice, no public auction, no allotment letter, no payment of consideration, and no approved cadastral survey or beacon certificate. The original title was never surrendered, and the Council Chairman had objected to the dealings.

p. 5
03

Whether the 1st Defendant holds a good title

Holding

The resultant title is tainted with fraud, ultra vires, illegal, null and void.

Reasoning

Relying on Daudi Kiptugen v Commissioner of Lands, the court held that since the alienation was fraudulent, the process of acquisition being material, the resulting title including KISII MUNICIPALITY/BLOCK 3/434 is tainted with fraud and cannot stand. The court also relied on KACC v Online Enterprises and KACC v Frann Investments where fraudulently acquired titles were declared null and void.

p. 5
04

Whether the 2nd Defendant is liable for misfeasance in public office

Holding

The 2nd Defendant was held liable for misfeasance in public office and general damages of Kshs. 1,000,000 awarded.

Reasoning

The tort was defined per Slade LJ in Jones v Swansea City Council. The 2nd Defendant, as Commissioner of Lands, owed a fiduciary duty to safeguard public interest but authorized the unlawful subdivision, change of user and transfer outside his statutory mandate. He offered no evidence to controvert the accusations, having not participated in the hearing, and the court found his actions fraudulent and illegal.

p. 5
05

Whether the Plaintiff is entitled to the reliefs sought

Holding

All reliefs proved on a balance of probability; judgment entered for the Plaintiff with the five final orders set out.

Reasoning

The court found that the Plaintiff had proved all the prayers in the Plaint on a balance of probability. Since the Defendants and their advocates failed to attend hearing despite service, the case proceeded ex parte and was undefended. The court therefore entered judgment and issued a declaration of nullity, a permanent injunction, an order of rectification of the register, general damages, and costs against the Defendants.

p. 5

Legal principles established

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  • The process of acquisition of title is material; a document of title not acquired through a proper process cannot be a good title.
  • Land reserved for public use under a Part Development Plan cannot be alienated to private persons without compliance with the statutory procedure for disposal of government/trust land.
  • A public officer who, acting ultra vires and fraudulently, facilitates the alienation of public land breaches the public trust and is liable in misfeasance in public office.

Court orders

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  1. 1.A declaration that the lease made to the 1st Defendant on 20th September, 2002 in respect of KISII MUNICIPALITY BLOCK 3/434 was made in excess of statutory powers of the 2nd Defendant and is null and void ab initio.
  2. 2.An order of permanent injunction restraining the 1st Defendant, his servants, employees, agents or assigns from trespassing upon, transferring, leasing, wasting and/or dealing with the suit property other than by way of transferring the said title to Kisii County Government as successor to County Council of Gusii.
  3. 3.The Land Registrar Kisii County directed to rectify the Register by cancelling the lease and certificate of lease issued on 20th September, 2002 in respect of KISII BLOCK 3/434 in favor of the 1st Defendant.
  4. 4.The 2nd Defendant to pay General damages of Kshs. 1,000,000/= for misfeasance in public office.
  5. 5.Costs of the suit to be borne by the Defendants jointly and severally.

Authorities

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Legislation

  • Constitution of Kenya (repealed)section 115
  • Constitution of Kenya (repealed)section 117(1)
  • Trust Land Actsection 3, 7, 12, 13
  • Government Lands Act (repealed)sections 3, 7, 11, 12, 13, 15
  • Local Government Act (repealed)section 144(3), (5)
  • Physical Planning Actsections 41(3), 42
  • Land Planning Actnot specified
  • Anti-Corruption and Economic Crimes Act, 2003not specified

Cases cited (11)

  • Ali Mohamed Dagane (Granted Power of Attorney by Abdullahi Muhumed Dagane, suing on behalf of the Estate of Mohamed Haji Dagane) v Hakar Abshir & 3 others
    [2021] eKLR
  • Harison Mwangi Nyota v Naivasha Municipal Council & 20 others
    [2019] eKLR
  • Nelson Kazungu Chai & 9 Others v Pwani University College
    (2014) eKLR
  • Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others
    182/1992 (Nyeri)
  • Dr. Joseph N.K. Arap Ng'ok v Justice Moijo Ole Keiyua & 4 others
    C.A.60/1997
  • Mbau Saw Mills Ltd v Attorney General (for and on behalf of the Commissioner of Lands) & 2 others
    [2014] eKLR
  • African Line Transport Co. Ltd v The Hon. AG
    Mombasa HCCC No.276 of 2013
  • Daudi Kiptugen v Commissioner of Lands & 4 Others
    [2015] eKLR
  • Kenya Anti-Corruption v Online Enterprises Limited & 4 Others
  • Kenya Anti-Corruption Commission v Frann Investments Limited & 6 Others
    (2020) eKLR
  • Jones v. Swansea City Council
    [1990] 1 WLR 55
Jurisdiction invoked
Original civil jurisdiction; land declared to be trust land vested in the County Council of Gusii under the Trust Land Act and section 115 of the repealed Constitution of Kenya

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, "Kenya Anti-Coruption Commission v Abel Sangonde Momanyi & another [2021] KEELC 331 (KLR)", Case Analysis (2021). Not stated in the judgment (Plaint dated 23rd September 2008, amended 30th April 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/331/eng@2021-12-09

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