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ELCDismissedPetition dated 6th October 2014 (Nakuru)· [2021] KEELC 3181 (KLR)

Chesang Kipruto v National Police Service Commission & 3 others [2021] KEELC 3181 (KLR)

Environment and Land Court
27 May 2021
DOD. O. Ohungo
3,540 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a landowner's constitutional claim because his title traced to an unauthorized allotment of public land, which the law treats as void.

What this practically means

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Executive summary

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The petitioner, holder of a certificate of lease issued on 23rd November 1998 over Nakuru Municipality Block 12/93 following a 20th July 1998 allotment letter from the Commissioner of Lands, petitioned the National Police Service and three state officers alleging that from about 2001 they had occupied the property as official residences for senior police officers and deployed armed officers to bar his access. He sought declarations of unconstitutional violation of his rights to property, dignity, equality and security of person, general damages, mandamus for mesne profits of KShs 10,000 per month and vacation of the property, and costs. The respondents opposed, contending the property was public utility planned for institutional residential use since 1968, occupied as a police residence since 1941, and never available for alienation, and that Article 40 does not protect unlawfully acquired property. The court framed two issues: violation of Article 40 rights and entitlement to relief. It found no presidential authorization for the alienation and no Part Development Plan supporting the allotment, adopting Court of Appeal authority that the Commissioner of Lands could not alienate public land without authorization and that such action is a nullity, void not voidable. Since Article 40(6) and Section 26 of the Land Registration Act withhold protection from unlawfully acquired property, and a challenged title requires proof of a valid root, the petitioner's certificate of lease afforded no protection. All reliefs were refused and the petition dismissed, with each party bearing own costs.

Key legal issues

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01

Validity of the petitioner's title to Nakuru Municipality Block 12/93

Holding

The certificate of lease was invalid because it issued from an unauthorized allotment of land dedicated as a government residence and unavailable for alienation

Reasoning

The petitioner's claim rested exclusively on the certificate of lease tracing to a 1998 letter of allotment. The respondents produced uncontroverted evidence that the property had been the official residence of senior police officers since 1941, with occupancy recorded from 2nd December 1972. No Part Development Plan or presidential authorization supported the alienation under the Government Lands Act, rendering the allotment and the resultant title a nullity.

p. 4
02

Whether the respondents violated the petitioner's rights under Article 40

Holding

No violation, because Article 40(6) does not extend to unlawfully acquired property

Reasoning

Rights of registered proprietors are guaranteed by Article 40 and Section 26 of the Land Registration Act, but the certificate of title yields protection only where the title was lawfully acquired. Having found the root of the petitioner's title to be a nullity, the continued occupation by police officers could not amount to deprivation of property protected by the Constitution.

p. 4
03

Whether the petitioner was entitled to the reliefs sought

Holding

The reliefs were refused in their entirety and the petition dismissed

Reasoning

Since the petitioner failed to demonstrate a valid title, all declaratory, damages and mandamus reliefs predicated on ownership of the suit property collapsed. A judgment founded on a void title would itself be void, so the court declined to grant any relief.

p. 5

Legal principles established

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  • Article 40(6) and Section 26 of the Land Registration Act do not protect property unlawfully acquired
  • A party whose title is challenged must do more than wave the title document and must demonstrate a root of title
  • An act of the Commissioner of Lands alienating public land without presidential authorization is a nullity, void and not merely voidable
  • A void title is a nullity on which no judgment can be founded

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 27, 29, 40, 47, 50(1), 65, 155, 156, 162(2)(b), 244, 246(1), 245, 260
  • Land Registration ActSections 24(a), 26(1)
  • Government Lands Act (repealed)Sections 3, 7, 9 and 12
  • Evidence ActSection 107

Cases cited (11)

  • Mucuha vs. The Ripples Ltd
    CA No. 106 of 1992
  • Kibusia Arap Konga v Evans Obonyo Obiero & another
    [2017] eKLR
  • Elijah Makeri Nyangw'ra vs. Stephen Mungai Njuguna & another
    [2013] eKLR
  • Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Ltd & 2 others
    Supreme Court Application No. 2 of 2011
  • Norbixin Kenya Limited v Attorney General
    [2014] eKLR
  • Henry Muthee Kathurima v Commissioner of Lands & another
    [2015] eKLR
  • Chemey Investment Limited v Attorney General & 2 others
    [2018] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Macfoy vs. United Africa Co. Ltd
    [1961] 3 All E.R. 1169
  • Republic v Karisa Chengo & 2 others
    [2017] eKLR
  • Said Bin Seif v. Shariff Mohammed Shatry
    (1940) 19 (1) KLR 9
Jurisdiction invoked
Articles 22, 27(1), 47, 50(1), 65 and 162(2)(b) of the Constitution of Kenya

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, "Chesang Kipruto v National Police Service Commission & 3 others [2021] KEELC 3181 (KLR)", Case Analysis (2021). Petition dated 6th October 2014 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3181/eng@2021-05-27

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