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ELCAllowedNot stated in the judgment· [2021] KEELC 420 (KLR)

Ethics and Anti-Corruption Commission v Joseph Oroko Ongera & another [2021] KEELC 420 (KLR)

Environment and Land Court
9 December 2021
4,664 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land lease obtained fraudulently, ruling that a title is only valid if acquired through the proper legal process.

What this practically means

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Executive summary

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The Plaintiff (County Government of Kisii, successor to County Council of Gusii) sued the 1st Defendant (registered lessee of KISII MUNICIPALITY BLOCK 3/429) and the 2nd Defendant (the former Commissioner of Lands), seeking a declaration that the transfer and Certificate of Lease were ultra vires and fraudulent, rectification of the register, vacant possession, a permanent injunction and general damages for misfeasance in public office. The Defendants did not enter appearance or file defences, and the suit proceeded by formal proof with three witnesses. The court framed five issues and found, on Gazette Notice No. 1937 of 31st May 1966 and Part Development Plan No. KSI/37/85/10, that the suit property was trust land vested in the Council and reserved for a Community Development Centre. It held that the statutory alienation procedure - approved PDP, gazettement, public auction, allotment letter, payment and cadastral survey - was not followed: there was no subdivision approval, no gazette notice, no allotment letter or payment, and the original title was never surrendered. The court found both Defendants acted fraudulently, and relying on Daudi Kiptugen and the anti-corruption authorities, declared the resulting title null and void ab initio. The 2nd Defendant, having filed no defence, was held liable for misfeasance in public office. All reliefs were substantially granted: declaration of nullity, permanent injunction, rectification of the register by the Land Registrar, Kshs. 1,000,000 general damages against the 2nd Defendant, and costs against the Defendants jointly and severally. Judgment was delivered at Kisii on 9th December 2021.

Key legal issues

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01

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

Holding

Yes - parcel KISII MUNICIPALITY/BLOCK 3/429, being a subdivision of Block 3/332, constituted trust land vested in the County Council of Gusii under the Trust Land Act.

Reasoning

Documentary and oral evidence, including Gazette Notice No. 1937 of 31st May 1966 and Part Development Plan No. KSI/37/85/10, established that 215.65 acres were set apart as trust land and a portion reserved for a Community Development Centre. Witnesses confirmed public facilities on the land and that its reserved purpose had never changed.

p. 5
02

Whether the Defendants acted fraudulently in alienating the suit property

Holding

Yes - the alienation contravened the statutory procedure for alienation of public land.

Reasoning

The prescribed steps for disposal of public land - approved Part Development Plan, gazettement, public auction, allotment letter, payment, cadastral survey and beacon certificate - were not followed. There was no application for or approval of subdivision, no gazette notice, no allotment letter or payment, and the original title was never surrendered. The Council's subdivision of Block 3/332 into 44 parcels also exceeded the ministerial approval.

p. 6
03

Whether the 1st Defendant holds a good title

Holding

No - the title was tainted with fraud and is null and void ab initio.

Reasoning

Having found the alienation fraudulent, the court applied Daudi Kiptugen v Commissioner of Lands, holding that the acquisition process is material and a title not acquired through proper process cannot be a good title, and followed the Kenyan anti-corruption authorities declaring fraudulently acquired titles null and void.

p. 6
04

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

Holding

Yes - as Commissioner of Lands he acted in breach of the public trust bestowed upon him.

Reasoning

The 2nd Defendant did not file a defence to controvert the accusations. Having found his actions fraudulent and illegal - approving subdivision, change of user and transfer outside his statutory mandate - the court held him liable for the tort of misfeasance in public office as defined in Jones v Swansea City Council.

p. 6
05

Whether the Plaintiff is entitled to the reliefs sought

Holding

Yes - the Plaintiff proved its case on a balance of probability and judgment was entered as prayed substantially.

Reasoning

The Defendants did not enter appearance or file defences; the case proceeded by formal proof. The court found all prayers proved and granted a declaration of nullity, permanent injunction, rectification of the register, general damages of Kshs. 1,000,000 against the 2nd Defendant, and costs.

p. 6

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 is not a good title.
  • Titles derived from a fraudulent alienation are tainted with fraud and are ultra vires, illegal, null and void.

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 3/429 was made in excess of statutory powers of the 2nd Defendant and is thus 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 the 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 MUNICIPALITY BLOCK 3/429 in favor of the 1st Defendant.
  4. 4.The 2nd Defendant to pay General Damages in the sum 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 13
  • Government Lands Act (repealed)sections 3, 7, 12, 13
  • Government Lands Act (repealed)sections 11, 13, 15
  • Registration of Titles Act (repealed)Cap 281
  • Local Government Act (repealed)sections 144(3), 144(5)
  • Physical Planning Actsections 41(3), 42
  • Land Planning ActNot specified
  • Anti-Corruption and Economic Crimes Act, 2003Not specified

Cases cited (12)

  • James Joram Nyaga & Another v A.G & Another
    (2007) eKLR
  • 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 Fran Investments Limited & 6 Others
    (2020) eKLR
  • Jones v. Swansea City Council
    [1990] 1 WLR 55
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcels in Kisii (Articles 162(2) and 165(5) framework); suit by the County Government as successor to County Council of Gusii in respect of trust land

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, "Ethics and Anti-Corruption Commission v Joseph Oroko Ongera & another [2021] KEELC 420 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/420/eng@2021-12-09

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