Amalo Company Limited v Attorney General & 5 others [2021] KEELC 804 (KLR)
The bottom line
#Kenya's land court cancelled Amalo's Kisumu plots as railway reserve land, but still ruled the State's eviction without notice was unconstitutional and compensation is owed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner holds indefeasible title to the suit properties protected under Article 40 and the Land Registration Act
No. The Petitioner failed to prove the legality of its acquisition: there were no letters of allotment, no proof the vendors held titles, and no proof the Commissioner of Lands received the requisite fees; the land vests in Kenya Railways Corporation under Legal Notice No. 24 of 1986 and was never surrendered for reallocation.
The court examined the Agreements for Sale and found each parcel was purportedly allocated to different vendors who had not obtained registration or letters of allotment. The survey plan FR/43/53 showed the parcels fell within the railway reserve vested in the 2nd Respondent. The vendors lacked capacity to contract, so the Petitioner could not acquire good title, and indefeasibility cannot attach to a title without a lawful root.
Whether the Petitioner's rights to property and fair administrative action were violated by the fencing and blocking of access to the suit properties
Yes. Although the title was found defective, the Respondents' unilateral dispossession of the registered proprietor without notice and without resort to a court or proper process was unconstitutional.
The court found the fencing by National Youth Service officers was done without notice to the Petitioner, contrary to Article 47 and section 4(3) of the Fair Administrative Action Act. Relying on Evelyn College of Design and Kuria Greens, the court held that even allegedly illegally acquired property cannot be dispossessed without due process; the Respondents should have given notice, initiated compulsory acquisition with compensation, or challenged the title in court.
Whether the 2nd Respondent's Cross-Petition is merited
Yes. The court declared Kenya Railways Corporation the rightful owner, declared the Petitioner's acquisition illegal, null and void, ordered cancellation of the leases, rectification of the register, eviction and a permanent injunction.
The court scrutinised survey plan FR/43/53 and Legal Notices 245 of 1963 and 24 of 1986 and found the suit properties fall within land vested in Kenya Railways Corporation. The land was public land reserved for railway operations and was never surrendered to the Government for reallocation to private entities, so the titles derived from persons without capacity to dispose of it.
Legal principles established
#- Even where property is alleged to have been illegally acquired, it cannot be dispossessed without due process; the State must give appropriate notice and pursue compulsory acquisition with compensation or challenge the title in court
- Indefeasibility of title under sections 24, 25 and 26 of the Land Registration Act is subject to Article 40(6) of the Constitution and does not protect titles acquired unlawfully or over land never lawfully allocated
- Dispossession of a registered proprietor without prior notice is unconstitutional and violates the right to fair administrative action under Article 47
Court orders
#- 1.A declaration that the actions of the Respondents in evicting the petitioner are illegal, unlawful and unconstitutional and in contravention of the fundamental rights and freedoms of the Petitioner
- 2.A finding that the Petitioner is entitled to compensation, the amount to be determined as no material was placed before the court
- 3.A declaration that the Cross-Petitioner (2nd Respondent, Kenya Railways Corporation) is the rightful owner of the suit land Kisumu Municipality/Block 3/182-186
- 4.A declaration that the acquisition of the land by the 1st to 6th Respondents in the Cross Petition is illegal, null and void
- 5.An order compelling the 7th and 8th Respondents in the Cross Petition to cancel the certificate of lease held by the 1st to 6th Respondents
- 6.An order directing the 7th Respondent to rectify the register and thereafter register the Cross-Petitioner as proprietor
- 7.A declaration that the occupation of the suit land by the 1st to 6th Respondents in the Cross-Petition is illegal and an order for eviction against them
- 8.A permanent injunction restraining the Respondents in the Cross-Petition, their agents and/or servants from interfering with the Cross-Petitioner's use and occupation of the suit land
- 9.Each party to bear its own costs
- Jurisdiction invoked
- Original constitutional jurisdiction under Article 165(3) of the Constitution (petition for enforcement of fundamental rights and freedoms); cross-petition determined under the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amalo Company Limited v Attorney General & 5 others [2021] KEELC 804 (KLR)", Case Analysis (2021). Petition No E003 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/804/eng@2021-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.