Kenya Anti-Coruption Commission v Paulina Kemuma Anunda & another [2022] KEELC 961 (KLR)
The bottom line
#A Kenyan court cancelled a fraudulently acquired land lease in Kisii and made the former Commissioner of Lands pay KSh 1 million for abuse of office.
What this practically means
#Executive summary
#Key legal issues
#Trust land status of the suit property
KISII MUNICIPALITY/BLOCK 3/437 was trust land vested in the County Council of Gusii under the Trust Land Act
PW1, PW2 and PW3 gave uncontroverted evidence that the parent parcel KISII MUNICIPALITY/BLOCK 3/332 was reserved under Part Development Plan No. KSI/37/85/10 for a Community Development Centre, following Gazette Notice No. 1937 of 31st May 1966 setting apart 215.65 acres as Trust Land vested in the Council.
Fraudulent alienation
Both Defendants acted fraudulently in alienating KISII MUNICIPALITY BLOCK 3/332 and the subdivision thereof
The statutory alienation procedure (Part Development Plan, gazettement, public auction, allotment letter, payment, cadastral survey and beacon certificate) was not followed; no approval for subdivision existed, the original title was never surrendered, and the Chairman's objection and the Commissioner's stoppage letter were disregarded.
Good title of the 1st Defendant
The 1st Defendant's title is tainted with fraud and is null and void; she failed to prove bona fide purchaser status
Following Daudi Kiptugen, process matters: since the alienation was fraudulent, the resultant title is ultra vires, illegal, null and void. The 1st Defendant adduced no evidence of allotment letter, payment, auction purchase or beacon certificate to establish an innocent purchase without notice.
Misfeasance in public office by the 2nd Defendant
The 2nd Defendant, the former Commissioner of Lands, is liable for misfeasance in public office
He filed a defence but gave no evidence to controvert the accusations. Having found his actions fraudulent and in excess of statutory mandate, the court held he breached the public trust, adopting the Slade LJ formulation of the tort in Jones v Swansea City Council.
Legal principles established
#- The process of acquiring title is material; title obtained through an improper process is not a good title
- Land reserved for public use cannot be alienated to private individuals without following the prescribed statutory procedure
Court orders
#- 1.A declaration that the lease made to the 1st Defendant on 2nd July, 2002 in respect of KISII MUNICIPALITY BLOCK 3/437 was made in excess of statutory powers of the 2nd Defendant and is null and void ab initio
- 2.A permanent injunction restraining the 1st Defendant, her servants, employees, agents or assigns from trespassing upon, transferring, leasing, wasting or dealing with the suit property other than by transferring the said title to Kisii County Government as successor to County Council of Gusii
- 3.The Land Registrar Kisii County directed to rectify the Register by cancelling the lease and Certificate of Lease issued on 2nd July 2002 in favour of the 1st Defendant
- 4.The 2nd Defendant to pay General Damages of Kshs. 1,000,000/- for misfeasance in public office
- 5.Costs of the suit borne by the Defendants jointly and severally
- Jurisdiction invoked
- Original civil suit in land; the judgment does not state the specific constitutional or statutory jurisdictional provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Anti-Coruption Commission v Paulina Kemuma Anunda & another [2022] KEELC 961 (KLR)", Case Analysis (2022). Plaint dated 23rd September, 2008 (as amended on 3rd April, 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/961/eng@2022-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.