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ELCAllowedPetition dated 4th October, 2018· [2021] KEELC 3589 (KLR)

South East Development Co. Ltd v Registrar of Titles & another [2021] KEELC 3589 (KLR)

High Court of Kenya
23 April 2021
OAO.A. Angote
2,150 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, registered since 19th November 2007 as proprietor of L.R. No. 209/27791, Mavoko under the Registration of Titles Act (repealed), petitioned the High Court challenging the revocation of its title by Gazette Notice of 1st April, 2010, whereby the Government purported to revoke titles to parcels said to have been reserved for public purpose under the Constitution, the Government Lands Act and the Trust Land Act. The Petitioner sought declarations under Articles 23(3)(a) and 165(3)(b) that its rights under Articles 40 and 47 were violated, an order purging the register of entries giving effect to the Gazette Notice, an injunction against implementation, and publication of the orders in the Kenya Gazette. The 2nd Respondent opposed, contending that property rights are not absolute under Article 40(6), that the power to revoke titles vests in the National Land Commission, and that the constitutional test for violation had not been met. The court found that the Respondents produced no evidence that the suit property was reserved for public purpose or unlawfully acquired, and did not dispute the Petitioner's assertions of lawful allocation. It further found no evidence that the Petitioner was heard before the revocation, breaching Article 47(1) and (2). Relying on natural justice authorities, the court held the revocation null and void. The Petition dated 4th October, 2018 was allowed in the terms of the declarations and register-purging order, with each party bearing its own costs.

Key legal issues

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01

Whether the Petitioner's right to property under Article 40 was violated

Holding

Yes - the Respondents failed to prove unlawful acquisition or public-purpose reservation

Reasoning

Article 40(1) protects the right to acquire and own property, qualified by Article 40(6) which excludes unlawfully acquired property. Although the Gazette Notice asserted the land was reserved for public purpose, the Respondents filed no evidence or affidavit to substantiate this or to dispute the Petitioner's lawful allocation. Fraud or misrepresentation was likewise not proved.

p. 3
02

Whether the revocation breached Article 47 (fair administrative action)

Holding

Yes - the Petitioner was never heard before cancellation of its title

Reasoning

Article 47(1) and (2) guarantee procedurally fair administrative action and written reasons. The Petitioner deponed it was never heard or issued with summons; the Respondents did not show that it was heard or given an opportunity to be heard. Relying on natural justice authorities, a decision made in breach of natural justice is no decision at all.

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Legal principles established

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  • The State revoking a registered title bears the burden of proving the title was unlawfully acquired or that the land was reserved for public purpose
  • Revocation of title without affording the owner a hearing breaches Articles 40(1) and 47(1) and (2) of the Constitution

Court orders

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  1. 1.A declaration that the right of the Petitioner to hold and acquire land protected by Article 40 was violated by the publication of Gazette Notice 3354 of 1st April, 2010
  2. 2.A declaration that the revocation of title to L.R. No. 209/27791, Mavoko by Gazette Notice 3454 of 1st April, 2010 contrary to Articles 40 and 47 is null and void
  3. 3.A declaration that Gazette Notice No. 3454 of 1st April, 2010 in respect of L.R. No. 209/27791 is of no effect, and a direction to the Registrar of Titles to cancel, delete, remove and/or purge all entries giving effect to it
  4. 4.Each party to pay its/his own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(3)(a), 40(1), 40(6), 47(1) and (2), 67, 165(3)(b)
  • Registration of Titles Act (repealed)Section 23
  • Government Lands Act
  • Trust Land Act
  • Environment and Land Court ActSection 13(2)

Cases cited (7)

  • Mumo Matemu vs. Trusted Society of Human Rights Alliance and 5 Others
    (2013) eKLR
  • Satima Enterprises Ltd. vs. Registrar of Titles & 2 Others
    (2012) eKLR
  • Reverend Harun Komoni Menywa vs. National Land Commission & 2 Others
    (2015) eKLR
  • Henry Muthee Kathurima vs. Commissioner of Lands & Another
    (2015) eKLR
  • Pastoli vs. Kabale District Local Government Council & Others
    (2008) 2 EA 300
  • Republic vs. The Honourable The Chief Justice of Kenya & Others Ex-parte Moijo Mataiya Ole Keiwua
    HCMA No. 1298 of 2004
  • De Souza vs. Tanga Town Council
    (1961) E.A 377
Jurisdiction invoked
Article 165(3)(b) and Article 23(3)(a) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "South East Development Co. Ltd v Registrar of Titles & another [2021] KEELC 3589 (KLR)", Case Analysis (2021). Petition dated 4th October, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3589/eng@2021-04-23

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