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ELCPartially AllowedPetition (Kisumu ELC, filed 12/11/2019)· [2021] KEELC 3546 (KLR)

Jacob Aduogo v Otieno Jowi & 4 others [2021] KEELC 3546 (KLR)

Environment and Land Court
29 April 2021
AOAntony Ombwayo
2,736 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a private title to land reserved for a Ministry of Works quarry, confirming that public land reserved for a purpose cannot be privately allocated.

What this practically means

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Executive summary

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The petitioner, a resident of Ojola village in Kisumu County, filed a petition on 12/11/2019 under Articles 2, 3, 10, 19, 20, 21, 22, 23, 24, 40(6), 48, 156(6), 165(3)(a), 258 and 259 of the Constitution and the Environment and Land Court Act, seeking declarations that Title No. West Kisumu/Ojola/1213 is public land, that the registration of the 1st respondent and subsequent transfers are void ab initio, a mandatory injunction compelling cancellation of the registration, an injunction restraining interference with the property, and costs. He alleged that the land, acquired by the government on 21 June 1978 and reserved as a Ministry of Works quarry, was fraudulently transferred to the 1st respondent in 1996 without compliance with the Government Land Act, RTA and RLA. None of the respondents filed responses or submissions despite being served, as confirmed by an affidavit of service. The court framed a single issue: whether the suit property was public land and available for allocation. Relying on the green card and certificate of official search showing government ownership and reservation for a public purpose, the court held under Article 62(1)(c) and 62(4) of the Constitution and Sections 3(a) and 7 of the repealed Government Land Act that alienated public land set aside for a public purpose could not be reallocated. Applying Niaz Mohamed Jan Mohamed, Paul Nderitu Ndung'u and KACC v Online Enterprises, the court found the petitioner had discharged the elevated burden of proving fraud, and that the registration of the 1st respondent was void ab initio. The court cancelled the registration, ordered the land to revert to the Government of Kenya, granted a permanent injunction against the respondents, and awarded costs to the petitioner. Reliefs for a mandatory injunction against the registrar, NLC invocation of its jurisdiction, and extension of time to lodge an appeal were not granted. Judgment delivered electronically on 29 April 2021 by Antony Ombwayo J due to COVID-19 court directions.

Key legal issues

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Whether the suit property West Kisumu/Ojola/1213 is/was public land and was available for allocation

Holding

The suit property was public land reserved for use as a Ministry of Works quarry; it was not available for alienation, and the transfer and registration of the 1st Respondent was fraudulent, void ab initio, and is cancelled with the land reverting to the Government of Kenya.

Reasoning

The green card and certificate of official search showed the Republic of Kenya as owner as at 21/07/78 with the property reserved for use as a ministry of works quarry. Under Article 62(1)(c) and 62(4) of the Constitution, public land may only be disposed of in terms of an Act of Parliament. Under Sections 3(a) and 7 of the repealed Government Land Act, the President/Commissioner could only dispose of unalienated government land. The property had been alienated for a public purpose, so the transfer to the 1st Respondent was an illegality and fraudulent. The petitioner discharged the elevated burden of proving fraud, and the respondents, though served, filed no response explaining how they acquired government land.

p. 4

Legal principles established

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  • Land reserved for a specific public purpose is not available for alienation or conversion to private use
  • Registration of a private person as proprietor of public/alienated government land is void ab initio
  • A holder of a lease or certificate of lease whose acquisition is challenged must demonstrate by evidence that it was properly acquired; the process of acquisition matters
  • The burden of proving fraud lies on the petitioner to a standard higher than balance of probabilities but lower than beyond reasonable doubt

Court orders

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  1. 1.Declaration that the registration of the 1st Respondent as proprietor of West Kisumu/Ojola/1213 was void ab initio
  2. 2.Cancellation of the registration of the 1st Respondent as proprietor and the land to revert to the Government of Kenya
  3. 3.Permanent injunction restraining the Respondents jointly and severally, their servants and/or agents from interfering with, selling, disposing of and/or transferring or causing to be transferred any interest in the property title no. West Kisumu/Ojola/1213
  4. 4.Costs of the petition granted to the petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 19, 20, 21, 22, 23, 24, 40(6), 48, 56(6), 61(2), 62(1)(c), 62(4), 67(1), 156(6), 165(3)(a), 258, 259
  • Environment and Land Court Act No. 19 of 2011Sections 3, 4(3), 13
  • National Land Commission Act No. 5 of 2012Section 14(1)
  • Government Land Act (repealed)Sections 2, 3(a), 7
  • Registration of Titles Act (Cap 28, Laws of Kenya) (repealed)Section 2
  • Registered Land Act (repealed)

Cases cited (5)

  • Chemey Investments Limited v. Attorney General & 2 Others
    [2018] eKLR
  • Niaz Mohamed Jan Mohamed v Commissioner of Lands & 4 others
  • John Mbugua Gitau v Simon Parkoyiet Mokare & 6 others
    [2014] eKLR
  • Paul Nderitu Ndung’u & 20 Others –V- Pashito Holdings Limited & Another
    Nairobi HCCC No. 3063 of 1996
  • Kenya Anti-Corruption Commission v Online Enterprises Limited & 4 others
    [2019] eKLR
Jurisdiction invoked
Articles 165(3)(a) and 258 of the Constitution and Sections 3, 4(3) and 13 of the Environment and Land Court Act No. 19 of 2011

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, "Jacob Aduogo v Otieno Jowi & 4 others [2021] KEELC 3546 (KLR)", Case Analysis (2021). Petition (Kisumu ELC, filed 12/11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3546/eng@2021-04-29

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