Kenya Anti-Coruption Commission v Abel Sangonde Momanyi & another [2021] KEELC 331 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit property is trust land vested in the County Council of Gusii
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.
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.
Whether the Defendants acted fraudulently in alienating the suit property
Held that the 1st and 2nd Defendants acted fraudulently in alienating parcel KISII MUNICIPALITY BLOCK 3/332.
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.
Whether the 1st Defendant holds a good title
The resultant title is tainted with fraud, ultra vires, illegal, null and void.
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.
Whether the 2nd Defendant is liable for misfeasance in public office
The 2nd Defendant was held liable for misfeasance in public office and general damages of Kshs. 1,000,000 awarded.
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.
Whether the Plaintiff is entitled to the reliefs sought
All reliefs proved on a balance of probability; judgment entered for the Plaintiff with the five final orders set out.
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.
Legal principles established
#- 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
#- 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.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.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.The 2nd Defendant to pay General damages of Kshs. 1,000,000/= for misfeasance in public office.
- 5.Costs of the suit to be borne by the Defendants jointly and severally.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.