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ELCOtherPetition No E003 of 2021· [2021] KEELC 804 (KLR)

Amalo Company Limited v Attorney General & 5 others [2021] KEELC 804 (KLR)

Environment and Land Court of Kenya
25 November 2021
10,426 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Amalo Company Limited petitioned the Environment and Land Court at Kisumu claiming that in September 2019 officers of the National Youth Service, acting for state agencies, fenced off its lakefront parcels Kisumu Municipality/Block 3/182-186 without notice, blocking its only access and violating its rights under Articles 25(c), 27, 28, 29, 40, 43, 47 and 50 of the Constitution. It sought declarations, injunctions and damages. Kenya Railways Corporation (2nd Respondent) filed an answer and a cross-petition asserting that the parcels fall within the railway reserve vested in it by Legal Notice 24 of 1986, that its vendors lacked capacity, and seeking cancellation of the Petitioner's titles, rectification of the register and eviction. The court framed three issues: entitlement to the orders sought, whether rights were violated, and whether the cross-petition was merited. It found no letters of allotment, no proof of payment to the Commissioner of Lands, and vendors without title or capacity, and was satisfied from survey plan FR/43/53 that the land vested in Kenya Railways Corporation and was never surrendered for reallocation. However, it also held that even allegedly illegally acquired property cannot be dispossessed without due process, and that fencing off a registered proprietor's land without notice violated Article 47. The court allowed the cross-petition, declaring the 2nd Respondent the rightful owner, the Petitioner's acquisition null and void, ordering cancellation of the leases, rectification of the register, eviction and a permanent injunction, while declaring the eviction actions unconstitutional and entitling the Petitioner to compensation in an amount undetermined. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Petitioner holds indefeasible title to the suit properties protected under Article 40 and the Land Registration Act

Holding

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.

Reasoning

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.

p. 8
02

Whether the Petitioner's rights to property and fair administrative action were violated by the fencing and blocking of access to the suit properties

Holding

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.

Reasoning

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.

p. 12
03

Whether the 2nd Respondent's Cross-Petition is merited

Holding

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.

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 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. 2.A finding that the Petitioner is entitled to compensation, the amount to be determined as no material was placed before the court
  3. 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. 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. 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. 6.An order directing the 7th Respondent to rectify the register and thereafter register the Cross-Petitioner as proprietor
  7. 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. 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. 9.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 25(c), 27, 28, 29, 35, 40, 43, 47, 50, 60(1)(b), 65, 184
  • Land Registration ActSections 24, 25, 26, 28, 80(1)
  • Fair Administrative Actions ActSection 4(3)
  • Evidence ActSections 107, 112
  • Kenya Railways Corporation (Vesting Land) Order, 1986Legal Notice Number 24 of 1986
  • Kenya Vesting of Land Regulations, 1963L/N.440/1963
  • Government Lands Act (GLA)Sections 3, 9 to 13
  • Kenya Railways Corporation ActSection 14
  • Land ActSection 158
  • Kenya Roads ActSection 9
  • National Youth ActSection 5
  • Urban Centers and Cities ActNot specified
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 26

Cases cited (29)

  • Republic vs Kisumu District Lands Officer & Another, Miscellaneous Application No. 80 of 2010
  • R vs National Police Service Ex Parte Daniel Chacha Chacha
    (2016) eKLR
  • Judicial Service Commission vs Mbalu Mutava & Another, Civil Appeal 52 of 2014
    (2015) eKLR
  • Hellen Wachuka Njoroge vs Attorney General & Another
    (2016) eKLR
  • Nakuru Industries Limited vs S S Mehta & Sons
    (2016) eKLR
  • Henry Muthee Kathurima vs Commissioner of Lands & Another
    (2015) eKLR
  • Funzi Island Development Limited & 2 Others vs County Council of Kwale & 2 Others
    (2014) eKLR
  • Republic vs Land Registrar Kilifi & Another ex parte Daniel Ricci
    (2013) eKLR
  • Munyu Maina v Hiram Gathiha Maina, Civil Appeal Number 29 of 2009
  • Dickson Ngigi Ngugi v Commissioner of Lands
    (2019) eKLR
  • Dr Josepph M.K. Ng'okys Ole Keiuwa & 4 Others
    (1997) eKLR
  • Katende v Haridar & Company Limited
    (2008) 2 E.A.173
  • Makula International Ltd vs His Eminence Cardinal Nsuuga and Another
    (1982) HCB II
  • Macfoy vs United Africa Company Ltd
    (1961) 3 ALL E.R.1169
  • Kinyanjui Kamau vs George Kamau
    (2015) eKLR
  • Ndolo v Ndolo
    (2008) 1 KLR (G&F) 742
  • Wallingford v Mutual Society
    (1880) 5 App.Cas.685
  • Garden Neptune v Occident
    (1989) 1 Lloyd's Rep.305
  • Lawrence v Lord Norreys
    (1880) 15 App.Cas.210
  • Davy v Garret
    (1878) 7 Ch.D.473
  • Moses Okath & Another vs The Attorney General & Another
    (2017) eKLR
  • Moi Education Centre Co. Ltd v William Musembi & 16 Others
    (2017) eKLR
  • Kembi Gitura v National Land Commission & 2 Others
    (2021) eKLR
  • Ashwander v Tennesse Valley Authority
    (1936) 297 U.S 288
  • John Harun Mwau & 3 Others v AG & 2 Others
    HCCP No.65 of 2011
  • Wanjiru Gikonyo & 2 Others v National Assembly of Kenya & 4 Others
    (2016) eKLR
  • Kuria Greens Limited vs Registrar of Titles & Another
    [2011] eKLR
  • Evelyn College of Design Ltd vs Director of Children's Department & Another
    [2013] eKLR
  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
    [2019] eKLR
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

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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, "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.