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ELCPartially AllowedPlaint dated 23rd September, 2008 (as amended on 3rd April, 2010)· [2022] KEELC 961 (KLR)

Kenya Anti-Coruption Commission v Paulina Kemuma Anunda & another [2022] KEELC 961 (KLR)

Environment and Land Court (implied, High Court at Kisii)
24 February 2022
5,588 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff (suing over trust land within Kisii town) sought a declaration that the lease and Certificate of Lease issued to the 1st Defendant over KISII BLOCK 3/437 on 2nd July 2002 were ultra vires, fraudulent and null and void, rectification of the register, vacant possession, a permanent injunction, and general damages against the 2nd Defendant (the former Commissioner of Lands) for misfeasance in public office. The 1st Defendant defended on the basis that she acquired the lease lawfully with the Council's blessing and without notice of defect; the 2nd Defendant denied acting outside his statutory mandate but did not appear at trial or file submissions. The court heard three Ministry of Lands witnesses whose evidence that the parent parcel, KISII MUNICIPALITY/BLOCK 3/332, was reserved for a Community Development Centre went uncontroverted. Framing five issues, the court held the suit property was trust land vested in the County Council of Gusii under the Trust Land Act; that the subdivision, change of user and transfer breached the prescribed alienation procedure (no Part Development Plan, gazette notice, public auction, allotment letter, payment or beacon certificate) and were therefore fraudulent; that the resultant title was tainted and null and void, applying Daudi Kiptugen; and that the 2nd Defendant, having filed no evidence, was liable for misfeasance in public office. The court entered judgment for the Plaintiff, issuing a declaration of nullity, a permanent injunction directing transfer to Kisii County Government, rectification of the register, general damages of Kshs. 1,000,000/- against the 2nd Defendant, and costs against both Defendants jointly and severally. Judgment delivered at Kisii on 24th February 2022 by J.M. Onyango J.

Key legal issues

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01

Trust land status of the suit property

Holding

KISII MUNICIPALITY/BLOCK 3/437 was trust land vested in the County Council of Gusii under the Trust Land Act

Reasoning

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.

p. 5
02

Fraudulent alienation

Holding

Both Defendants acted fraudulently in alienating KISII MUNICIPALITY BLOCK 3/332 and the subdivision thereof

Reasoning

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.

p. 6
03

Good title of the 1st Defendant

Holding

The 1st Defendant's title is tainted with fraud and is null and void; she failed to prove bona fide purchaser status

Reasoning

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.

p. 6
04

Misfeasance in public office by the 2nd Defendant

Holding

The 2nd Defendant, the former Commissioner of Lands, is liable for misfeasance in public office

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.The 2nd Defendant to pay General Damages of Kshs. 1,000,000/- for misfeasance in public office
  5. 5.Costs of the suit borne by the Defendants jointly and severally

Authorities

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Legislation

  • Constitution of Kenya (repealed)section 115
  • Constitution of Kenya (repealed)section 117(1)
  • Trust Land Actsection 13
  • Government Lands Act (repealed)sections 3, 7, 11, 12, 13, 15
  • Local Government Act Cap 265 (repealed)section 144(3), (5)
  • Physical Planning Actsections 41(3), 42
  • Land Planning Actnot specified
  • Anti-Corruption and Economic Crimes Act, 2003not specified
  • Registration of Titles Act (repealed)Cap 281

Cases cited (16)

  • James Joram Nyaga & Another v A.G & Another
    (2007) eKLR
  • Kenya Anti-Corruption Commission v Lima Limited & 2 Others
    (2019) eKLR
  • Kenya Anti-Corruption Commission v Frann Investment Limited & 6 Others
    (2020) eKLR
  • Jones v Swansea City Council
    (1990) 3 All ER 731 / [1990] 1 WLR 55
  • Republic v Minister for Transport & Communications & 5 Others Ex-parte Waa Ship Garbage Collectors & 15 Others
    (2006) 1 KLR E&L
  • Lawrence P. Mukiri v Attorney General & 4 Others
    (2013) eKLR
  • Nicholas Kioko Muoki & Another v Feizal Mohammed
    (2021) eKLR
  • Ali Mohamed Dagane v Hakar Abshir & 3 others
    [2021] eKLR
  • Harison Mwangi Nyota v Naivasha Municipal Council & 20 others
    [2019] eKLR
  • Nelson Kazungu Chai & 9 Others v Pwani University College
    (2014) eKLR
  • Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others
    182/1992 (Nyeri)
  • Dr. Joseph N.K. Arap Ng'ok v Justice Moijo Ole Keiyua & 4 others
    C.A.60/1997
  • Mbau Saw Mills Ltd v Attorney General & 2 others
    [2014] eKLR
  • African Line Transport Co. Ltd v The Hon. AG
    Mombasa HCCC No.276 of 2013
  • Daudi Kiptugen v Commissioner of Lands & 4 Others
    [2015] eKLR
  • Kenya Anti-Corruption v Online Enterprises Limited & 4 Others
Jurisdiction invoked
Original civil suit in land; the judgment does not state the specific constitutional or statutory jurisdictional provision

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, "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.