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ELCPartially AllowedELC No. 679 of 2006 (consolidated with ELC Nos. 324 of 2010 and 325 of 2010)· [2022] KEELC 729 (KLR)

Julie Nyawira Mathenge v Kenya School Of Government & 2 others;Ethics And Anti-Corruption Commission (Interested Party) [2022] KEELC 729 (KLR)

Environment and Land Court
17 March 2022
14,092 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~56 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Three consolidated Environment and Land Court suits (ELC Nos. 679 of 2006, 324 of 2010 and 325 of 2010) concerned ownership of L.R Nos. 11509, 11510 and 11511 at Lower Kabete, Nairobi. Julie Nyawira Mathenge claimed she was lawfully allocated the plots between 1982 and 1997 and sought declarations that they were private land, injunctions against the Kenya School of Government (KSG), and damages, challenging the Chief Land Registrar's 2010 gazette revocation of her titles. KSG (formerly Kenya Institute of Administration) counter-claimed, asserting the plots were land reserved for it since the 1960s and never surrendered, and that her titles were fraudulently and illegally issued. EACC sued former Commissioners of Lands James Raymond Njenga and Wilson Gacanja for issuing the grants in excess of statutory powers and in breach of fiduciary duty. The court found the suit properties were reserved for KIA/KSG, remained in its continuous possession, and were never surrendered or advertised for alienation; being reserved land they were not unalienated government land available for allocation. Further, under the proviso to section 7 of the Government Lands Act the power to alienate rested with the President, and township land could only be disposed of by public auction — neither requirement was met. Njenga's letter showed the allocation of Plot 11509 followed a Minister's influence. The Plaintiff's titles were accordingly illegal, null and void ab initio and unprotected by indefeasibility, she never being a purchaser. Her claim was dismissed; KSG's counter-claim and EACC's suits were allowed with declarations, cancellation of the grants and a permanent injunction. The court, however, held the Registrar's administrative revocation unlawful for want of due process. Costs went to KSG and half-costs to EACC, all payable by the Plaintiff; costs were declined to the Registrar and Attorney General.

Key legal issues

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01

Whether the suit properties were available for alienation

Holding

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

Reasoning

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.

p. 10
02

Whether the Commissioners of Lands had power to allocate the suit properties

Holding

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

Reasoning

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.

p. 11
03

Whether the Plaintiff holds valid and indefeasible titles

Holding

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

Reasoning

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).

p. 14
04

Whether the 1st Defendant trespassed

Holding

No; the 1st Defendant, as owner in possession since the 1960s, had justifiable cause to resist the Plaintiff's attempts to take possession

Reasoning

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.

p. 14
05

Whether the administrative revocation of the titles was lawful

Holding

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

Reasoning

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.

p. 14
06

Whether Njenga and Gacanja are liable to EACC's claims

Holding

Yes; they acted outside their statutory powers and in breach of the trust of their office, so EACC's claims are proved

Reasoning

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.

p. 14

Legal principles established

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  • 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

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  1. 1.The claim by the Plaintiff in ELC No. 679 of 2006 is dismissed
  2. 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. 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. 4.Declaration that the said Grants conferred no estate, interest or right on the Plaintiff
  5. 5.Cancellation of the Grants in respect of L.R No. 11510, L.R No. 11511 and L.R No. 11509
  6. 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. 7.Costs of ELC No. 679 of 2006 and the counter-claim awarded to the 1st Defendant, payable by the Plaintiff
  8. 8.EACC awarded half (1/2) the costs of ELC No. 324 of 2010 and ELC No. 325 of 2010

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 62; Articles 40, 47, 64; Article 40(6); Article 27(4)
  • Government Lands Act, Cap 280 (repealed)Sections 2, 3(a), 7 and proviso, 9 to 18B, Part III
  • Registration of Titles Act, Cap 281 (repealed)Sections 23(1), 65(1)(f)
  • Land Registration Act, 2012Section 26(1)
  • Kenya School of Government Act, No. 9 of 2012transfer of KIA assets and liabilities
  • Kenya Institute of Administration Act, No. 2 of 1996 (repealed)establishment of KIA
  • Government Proceedings Act, Cap 40compliance requirements

Cases cited (31)

  • Mike Maina Kamau v Attorney General
    [2017] eKLR
  • Timothy Ingosi & 87 others v Kenya Forestry Services & 2 others
    [2015] eKLR
  • James Joram Nyaga & Another v Attorney General
    [2007] eKLR
  • Ali Mohammed Dagane (Granted Power of Attorney by Abdullahi Muhamed Dagane, suing on behalf of the Estate of Mohammed Haji Dagane) v Hakar Abshir & 3 Others
    [2021] eKLR
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    [2015] eKLR
  • John Kiguru Karume v Kenya Institute of Administration & 4 others
    [2017] eKLR
  • Kenya Anti-Corruption Commission v Online Enterprises Limited & 4 Others
    [2019] eKLR
  • Joseph Kuria Kiburu v Attorney General
    [2018] eKLR
  • Republic v Minister For Transport & Communication & 5 Others ExParte Waa Ship Garbage Collector & 15 Others
    Mombasa HCMCA No.617 of 2003 [2006] 1 KLR (E&L) 563
  • Mureithi & 2 Others (For Mbari Ya Murathimi Clan) v Attorney General & 5 Others
    Nairobi HCMCA No. 158 of 2005 [2006] 1 KLR 443
  • Chemei Investments Limited v The Attorney General & Others
    Nairobi Petition No. 94 of 2005
  • Denis Noel Mukhulo & Another v Elizabeth Murungari Njoroge & Another
    CA No. 298 of 2013
  • Mbuthia Macharia v Annah Mutua Ndwiga & another
    [2017] eKLR
  • Insurance Company of East Africa v The Attorney General
    [2001] eKLR
  • Kenya Anti-Corruption Commission v Wilson Gacanja & 3 others
    ELC No. 5 of 2008
  • Joshua Okungu & Another v CM'S Court, Anti-Corruption Court & Another
    [2014] eKLR
  • Leah Magoma Ongai v Attorney General
    [2015] eKLR
  • Farooq Imtiaz Mohamed Malik v Director of Police Investments & 3 Others
    [2018] eKLR
  • Kenya National Highway Authority v Shalien Masood Mughal & 5 others
    [2017] eKLR
  • Peter Mureithi & 2 others v Attorney General & 4 others
    [2006] eKLR
  • Chemey Investment Limited v Attorney General & 2 others
    [2018] eKLR
  • Adan Abdirahani Hassan & 2 others v Registrar of Titles, Ministry of Lands & 2 others
    [2013] eKLR
  • James Joram Nyaga & another v Attorney General & another
    [2019] eKLR
  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
    [2019] eKLR
  • Supa Nova Properties Limited & another v District Land Registrar Mombasa & 2 others, Kenya Anti-Corruption Commission & 2 others (Interested Parties)
    [2018] eKLR
  • Republic v Land Registrar Mombasa & 2 others Ex Parte Bhangra Limited
    [2012] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Daudi Kiptugen v Commissioner of Lands & 4 Others
    [2015] eKLR
  • Milankumar Shah & 2 others v The City Council of Nairobi & another
    Nairobi High Court Civil Suit No. 1024 of 2005 (O.S)
  • Henry Muthee Kathurima v Commissioner of Lands & Another
    (2015) eKLR
  • Arthi Highways Developers Limited v West End Butchery Limited & 6 others
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.