Julie Nyawira Mathenge v Kenya School Of Government & 2 others;Ethics And Anti-Corruption Commission (Interested Party) [2022] KEELC 729 (KLR)
The bottom line
#The court cancelled a private owner's title to land reserved for the Kenya School of Government, ruling the allocation was illegal—yet still faulted the state for cancelling it unfairly.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit properties were available for alienation
The suit properties were reserved for the 1st Defendant, remained in its possession from the 1960s, and were never surrendered, so they were not unalienated government land available for allocation
The court traced the history: the land was reserved for KIA per a 1969 letter and survey plan; the 1965 meeting concerned a shopping centre project of the 1st Defendant, not a surrender; the plan was abandoned and the 1st Defendant remained in possession, letting shops. Reserved land is not unalienated and could not be allocated.
Whether the Commissioners of Lands had power to allocate the suit properties
The Commissioners acted in excess of statutory powers since only the President could alienate unalienated government land, and township land could only be disposed of by public auction
The proviso to section 7 GLA reserved Presidential powers under sections 3, 12, 20 and 128; no Presidential approval was proved. Land in townships had to be sold by advertised public auction under sections 9 to 18B. Neither plot was allocated by auction, rendering allocation unlawful and in excess of power.
Whether the Plaintiff holds valid and indefeasible titles
No; the titles were acquired illegally and are null and void ab initio and unprotected by section 23(1) RTA, section 26 LRA or Article 40(6) of the Constitution
Relying on Daudi Kiptugen, Munyu Maina, Henry Muthee Kathurima and Adan Abdirahani Hassan, the court held that the process of acquisition is material and indefeasibility does not shield illegally acquired titles. The Plaintiff, as first allottee, was not even a purchaser protected by section 23(1).
Whether the 1st Defendant trespassed
No; the 1st Defendant, as owner in possession since the 1960s, had justifiable cause to resist the Plaintiff's attempts to take possession
Trespass requires intrusion on land in possession of another without justifiable cause. The Plaintiff had no valid interest and was never in possession, so she could not maintain the action. The 1st Defendant was entitled to resist fencing and reconstruction after the fire.
Whether the administrative revocation of the titles was lawful
The revocation was unlawful because no evidence showed the rules of natural justice were followed, and it was done while the suit was pending and status quo orders were in force
Although the titles were invalid, due process and fair administrative action were still required before revocation. The revocation occurred despite a status quo order issued on 8th October 2007, making it unlawful — yet reinstatement of a void title would serve no purpose.
Whether Njenga and Gacanja are liable to EACC's claims
Yes; they acted outside their statutory powers and in breach of the trust of their office, so EACC's claims are proved
The evidence established that the suit properties were reserved and developed with government buildings, yet the former Commissioners allocated them despite protests from KIA and the Permanent Secretary. Their acts were ultra vires and in breach of fiduciary duty, entitling EACC to declarations, rectification and injunction.
Legal principles established
#- Land reserved by government for a particular use is not unalienated government land and is unavailable for alienation unless the reservation is surrendered, revoked or cancelled
- The proviso to section 7 of the Government Lands Act limited the power to alienate unalienated land to the President; the Commissioner of Lands could not validly alienate without Presidential approval
- Indefeasibility of title does not protect a title acquired illegally, unprocedurally or through a corrupt scheme; a registered proprietor must prove the legality of acquisition when the root of title is challenged
- A party with no proprietary interest or possession cannot maintain an action in trespass
- Even an invalid title cannot be revoked administratively without due process and fair administrative action
Court orders
#- 1.The claim by the Plaintiff in ELC No. 679 of 2006 is dismissed
- 2.Declaration that the Grants of 30th July 1997 in respect of L.R No. 11510 (I.R No. 74300) and L.R No. 11511 (I.R No. 74301) were made in excess of statutory powers and are illegal, null and void
- 3.Declaration that the Grant of 28th September 1982 in respect of L.R No. 11509 (I.R No. 36911) was made in excess of statutory powers and is illegal, null and void
- 4.Declaration that the said Grants conferred no estate, interest or right on the Plaintiff
- 5.Cancellation of the Grants in respect of L.R No. 11510, L.R No. 11511 and L.R No. 11509
- 6.Permanent injunction restraining the Plaintiff from trespassing upon, transferring, leasing or dealing with the suit properties or interfering with the 1st Defendant's occupation and ownership
- 7.Costs of ELC No. 679 of 2006 and the counter-claim awarded to the 1st Defendant, payable by the Plaintiff
- 8.EACC awarded half (1/2) the costs of ELC No. 324 of 2010 and ELC No. 325 of 2010
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over disputes relating to land
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Push Enterprises Limited v Kenya Airports Authority (Environment & Land Case 721 of 2013) [2024] KEELC 449 (KLR)[2024] KEELC 449 (KLR)25 Jan 2024
Cite this brief
#Cite this brief
Caselaw, "Julie Nyawira Mathenge v Kenya School Of Government & 2 others;Ethics And Anti-Corruption Commission (Interested Party) [2022] KEELC 729 (KLR)", Case Analysis (2022). ELC No. 679 of 2006 (consolidated with ELC Nos. 324 of 2010 and 325 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/729/eng@2022-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.