John Cherunya Kiptalam & 4 others v National Land Commission & 3 others; ICDC & 52 others (Interested parties) [2022] KEELC 2280 (KLR)
The bottom line
#Kenya's land court confirmed a 1978 compulsory acquisition was valid, but returned 217 acres to the landowner's estate and cancelled unlawful allocations.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over the petition
The court has jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, including over compulsory acquisition disputes.
The court reviewed the jurisprudence that jurisdiction is conferred by the Constitution and statute and may not be assumed. Article 162(2)(b) establishes courts with High Court status for land disputes, and Section 13(2)(b) of the ELC Act expressly confers power over disputes relating to compulsory acquisition of land. The petition concerns title, compulsory acquisition and public versus private land, squarely within that jurisdiction.
Whether the petition is statute barred
The limitation objection fails; the delay is explained and constitutional petitions are not strictly subject to limitation.
The petition was filed about 30 years after the acquisition. Relying on authority that limitation applies less strictly to constitutional petitions where delay is explained and not inordinate, and noting that surveying was only done after 2005, the court found the explanation justifiable and declined to strike out the petition under Section 7 of the Limitation of Actions Act or the Public Authorities Limitations Act.
Validity and completeness of the compulsory acquisition
The acquisition of 400 acres was valid and compensation fully paid, but the process was incomplete because the acquisition was not noted on the register and title document.
Gazette Notices of 1978 and the 1980 revision showed 400 acres were acquired; the Compensation Award and Acceptance Certificates and the deceased's 1979 letter to the President proved full payment of Kshs. 2,637,500. Survey Plan No. 448/159 (2005) demarcated the 400 acres as Block 15/2366 and 217 acres as Block 15/2365. However, following the Court of Appeal in Elizabeth Wambui Githinji, failure to record the acquisition on the register went to completeness, though the government may still make the entry without prejudice to the compensated Petitioner.
Use of the acquired land and fate of private allocations
Allocations of the 400 compulsorily acquired acres to private individuals for private use were unlawful, but bona fide purchasers' titles were not cancelled absent proved fraud; recovery is left to state agencies.
Applying the Supreme Court's Town Council of Awendo principles, only ICDC demonstrated a public-purpose use consistent with the acquisition. Other interested parties used their parcels privately, which is unconstitutional. However, the Petitioner pleaded and proved no fraud against the innocent purchasers, whose registered titles under Section 26 of the Land Registration Act therefore stand; the EACC may still pursue recovery litigation.
Allocations from the 217 acres retained by the Petitioner
Any allocation out of Block 15/2365 (217 acres) is unlawful, null and void as it is private land belonging to the estate.
The 217 acres were never acquired; they remained the deceased's private land, yet the Commissioner of Lands allocated portions of it while a caveat over the parent title was still in force. Allocations and titles emanating from that parcel must be revoked and cancelled within ninety days, and the Registrar directed to issue the estate a title for Block 15/2365 upon surrender of the original title for L.R. 8148.
Legal principles established
#- Compulsorily acquired land must be used for the purpose for which it was acquired; allocation of such land to private individuals for private benefit does not confer title
- Compulsory acquisition is incomplete without entries on the register and the title document where only part of a parcel is acquired
- Upon compulsory acquisition and full compensation, the previous owner's estate is extinguished and no reversionary interest survives
- Limitation does not bar a constitutional petition on fundamental rights where the delay is explained
- A bona fide purchaser's registered title is protected unless fraud or illegality in acquisition is pleaded and strictly proved
Court orders
#- 1.A declaration that compulsory acquisition by the government of 400 acres from the Petitioner's LR No. 8148 was validly done, with a direction that the Respondents note the acquisition on the registers of LR No. 8148, Eldoret Municipality/Block 15/2366 and the unallocated subdivisions thereof
- 2.A declaration that Eldoret Municipality/Block 15/2365, measuring 217 acres, belongs to the late Kiptalam Arap Cherunya, the Petitioner, with directions to the 3rd Respondent and County Surveyor, Uasin Gishu to confirm and point out the parcel's boundaries/beacons within ninety (90) days
- 3.A direction that the Land Registrar Uasin Gishu issue the Petitioner with the title document for Eldoret Municipality/Block 15/2365 upon the Petitioner surrendering the original title for L.R. No. 8148 for cancellation
- 4.A declaration that any allocation of parcels out of Eldoret Municipality/Block 15/2365 is unlawful, null and void, with directions to the 1st and 3rd Respondents to revoke and/or cancel such allocations and titles within ninety (90) days
- 5.An order of restraint restraining the Land Registrar Uasin Gishu, National Land Commission, the encroaching 4th to 52nd Interested Parties and any other person from entering, trespassing, transferring or dealing with Eldoret Municipality/Block 15/2365
- 6.The stay order of 9th December, 2019 vacated and/or set aside to enable the affected suits to continue
- 7.Respondents to jointly and severally pay the Petitioner's costs; all other parties to bear their own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution, 2010 and Section 13 of the Environment and Land Court Act, No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Cherunya Kiptalam & 4 others v National Land Commission & 3 others; ICDC & 52 others (Interested parties) [2022] KEELC 2280 (KLR)", Case Analysis (2022). Petition dated 10th March, 2008 (Eldoret ELC) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2280/eng@2022-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.