Crossley Holdings Ltd v Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries & 4 others; Richard Ochieng Ogendo & another (Interested Parties) [2021] KEELC 1868 (KLR)
The bottom line
#The Kisumu Environment and Land Court confirmed a company bought land validly at auction, ordered the government and others off within 60 days, but refused its Kshs 6 billion damages claim.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over the petition
The court has jurisdiction since the dispute concerns title to land.
Relying on Article 162(2)(b), section 13 of the ELC Act, and the Court of Appeal's decision in Civil Appeal No. 112 of 2015 directing that title issues be determined by the ELC, the court held that the dispute squarely falls within its sui generis jurisdiction, notwithstanding that the petitioner framed it as a constitutional petition.
Res judicata
The petition is not res judicata.
The prior proceedings (HCCC 225 of 1993, Civil Appeal 261 of 2008, Civil Appeal 112 of 2015 and Nairobi HCCC 459 of 2008) concerned re-issue of summons or procedural matters, or were dismissed for want of prosecution. The issue of ownership of the land was never heard and finally determined on the merits by a competent court, and the parties differ from the present suit.
Limitation
The petition is not time barred.
Section 7 of the Limitation of Actions Act bars actions to recover land after 12 years, but the petitioner does not seek to recover land; it seeks to assert proprietary rights against state interference prompted by the 2020 advertisement for leasing. Delay was explained by the sequence of litigation between the parties.
Status of the suit land - public or private
L.R. 7545/3 is not public land and the GoK never acquired it.
The registered owner before the auction was Miwani Sugar Mills Limited, a private entity. Registration of the certificate of incorporation of Miwani Sugar Company (1989) Ltd as entry No. 22 did not transfer the land to that company. Miwani Sugar Company (1989) Ltd remains majority-owned by Vanessa Associates (51%) and is a private company, and its debentures excluded land.
Whether the petitioner is a bona fide purchaser for value without notice
Yes; its title is protected under section 26 of the Land Registration Act.
The auction was duly advertised, conducted pursuant to a court decree, and the purchase price of Kshs. 752,000,000 was paid as acknowledged by the decree-holder's advocates, who had ostensible authority to bind the client. Fraud and misrepresentation were neither particularized nor proved to the required standard, and the 5th Respondent never applied under Order 21 Rules 78 or 79 to set aside the auction.
Legality of the GoK transactions with Miwani entities
The GoK transactions were illegal, null and void for non-compliance with the External Loans and Credits Act.
The Auditor-General's reports showed foreign loans taken without parliamentary reporting or approval under the External Loans and Credits Act, rendering the transactions illegal. The 1990 agreement produced by the 2nd Respondent was unsigned and thus of no legal effect, as was the advertisement for leasing without public participation.
Competence of the Cross-Petitions
Both Cross-Petitions were incompetent and were struck out.
The 1st and 4th Respondents' Cross-Petition failed to plead with precision the constitutional provisions allegedly violated (Anarita Karimi Njeru/Mumo Matemu threshold) and state organs lack capacity to enforce Bill of Rights claims against private entities per Meru County Government v EACC. The 5th Respondent, wholly owned by a state agency, likewise lacked capacity.
Violation of the petitioner's constitutional rights
The petitioner's Article 40 rights were violated by the attempted advertisement for leasing without hearing.
The petitioner established a registered proprietary interest protected under Article 40. The 2nd Respondent's advertisement of International Expression of Interest over land owned by the petitioner, without notice, hearing or public participation, contravened Articles 40, 47 and 10 of the Constitution.
Status of the contested annexures BS-13, 14, 15, 17 and 19
The documents are not protected classified documents and were not expunged.
Under the National Security Council Act, limitations on Article 35 access to information for classified information must comply with Article 24 and the procedure in the Act. The deponent merely asserted the documents were classified without evidence of compliance with the classification procedures, so the request to expunge was denied.
Necessary parties
The 5th Respondent is a necessary party; the Interested Parties are not.
Orders sought are directed against the 5th Respondent, satisfying the Mumo Matemu locus test. The Interested Parties adduced no evidence that they are farmers or representatives of 100,000 farmers, and the petition is not public interest litigation, so they are unnecessary parties.
Legal principles established
#- The ELC has jurisdiction over title disputes arising in constitutional petitions concerning land under Article 162(2)(b) and section 13 of the ELC Act.
- A suit whose subject matter was never determined on the merits in prior proceedings is not res judicata.
- State organs cannot institute constitutional petitions to enforce Bill of Rights protections against private entities.
- Registration of a certificate of incorporation on a title does not amount to a transfer of land, hence land was not acquired by the state.
- An unsigned agreement for the disposition of an interest in land is a nullity.
- A person who does not move court under Order 21 Rules 78 or 79 to set aside a court-sanctioned public auction has its rights extinguished.
- Failure to conduct public participation before advertising for leasing of the land vitiates the intended lease.
Court orders
#- 1.An order of possession of the land L.R. 7545/3 (I.R. No. 21038) enforceable against each and all the Respondents including their workers, servants, agents, representatives and assigns including those purporting to work for or represent Miwani Sugar Company (1989) Ltd (in receivership) granted to the Petitioner.
- 2.An order that all the Respondents including their workers, servants, agents, representatives and assigns including those purporting to work for or represent Miwani Sugar Company (1989) Ltd (in receivership) do vacate the suit Property within 60 days.
- 3.An order of permanent injunction stopping each and all of the respondents from selling, leasing, transferring, charging, mortgaging and granting licences or easements to the land or in any way dealing with the land to the detriment of the Petitioner.
- 4.Both Cross-Petitions struck out as incompetent and improperly before court.
- 5.Costs to the Petitioner to be paid jointly and severally by the Respondents and the Interested Parties.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Crossley Holdings Ltd v Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries & 4 others; Richard Ochieng Ogendo & another (Interested Parties) [2021] KEELC 1868 (KLR)", Case Analysis (2021). ELC Petition Case No. 6 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1868/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.