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ELCPartially AllowedPetition dated 25.9.2020 (Meru ELC)· [2022] KEELC 2569 (KLR)

Diocese of Meru Registered Trustees v Kenya Tea Development Agency Limited & 8 others; County Government Of Meru & another (Interested Parties) (Election Petition E003 of 2020) [2022] KEELC 2569 (KLR)

Environment and Land Court
6 July 2022
8,153 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled nine land titles created from trust land because the defunct county council had no legal authority to allocate it, but refused to register the land to the petitioner.

What this practically means

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Executive summary

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The petitioner, a registered society acting for the trustees of the Poor Hand Maid of Jesus Christ and St. Joseph Children's Home on L.R Nkuene/Mitunguu/190, petitioned against the subdivision of the approximately 100-acre mother parcel into nine subdivisions registered in favour of the respondents and the lease of parcel 1975 to the 1st respondent. It claimed an allocation of 15 acres in 2007/2008, occupation and developments worth about Kshs.100 million, and alleged the re-allocations breached the retired Constitution (sections 117-120) and the Trust Land Act, violating the rights of destitute children and residents of Mitunguu. The respondents contended the land had been leased to tea factories and allocated to seven families affected by the Giumpu landslide disaster, that the land had been subdivided in 2002 before the petitioner's alleged allocation, and that the petition disclosed no constitutional question. The court found the petitioner had standing, applying estoppel against the 2nd and 3rd respondents, and that the petition met the Anarita Karimi Njeru threshold. It held the ELC had jurisdiction since the dispute concerned trust/public land. On the merits, the court found that upon the society's liquidation in 1999 its assets vested in the liquidator under the Cooperative Societies Act; the defunct county council had no authority to assume ownership, re-allocate or cause subdivisions and transfers without the liquidator's involvement, Commissioner of Cooperatives' approval and land control consents. The change of reservation, subdivisions, re-allocations and transfers were declared unconstitutional, null and void ab initio, and the Land Registrar was ordered to cancel all resultant titles. However, the court did not order registration of the 15 acres in the petitioner's favour, holding letters and minutes confer no proprietary interest. There was no order as to costs, the suit being public interest litigation.

Key legal issues

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01

Locus standi of the petitioner

Holding

The petitioner, a registered society, had standing to sue in its own interest and in the interest of the children's home, its members and the residents of Mitunguu under Articles 22 and 258 of the Constitution; the 2nd and 3rd respondents were estopped from denying its standing having previously sued it as a registered entity

Reasoning

Rule 4(2) of the Mutunga Rules permits an association to petition in the interest of a group or class or in public interest. The petitioner defined its capacity in the petition. The 2nd respondent's own pleadings in the lower court suit acknowledged the petitioner and the children's home as registered entities with capacity to sue and be sued, so the respondents were estopped from contending otherwise.

p. 9
02

Whether the petition disclosed a constitutional question within the court's jurisdiction

Holding

The petition went beyond a private land dispute: it concerned the alienation of trust/public land in breach of sections 117-120 of the retired Constitution and the Trust Land Act, and the ELC has jurisdiction under section 13(3) of the ELC Act

Reasoning

The court distinguished authorities requiring ordinary suits for fraud claims, holding that where the mother title was reserved trust land and the reallocation implicated constitutional and statutory provisions governing public land, the dispute raised genuine constitutional issues properly before the ELC.

p. 11
03

Whether the defunct county council could re-allocate land of a society under liquidation

Holding

It could not. Upon liquidation all property of the defunct Abogeta Farmers Cooperative Society vested in the liquidator, and the council had no authority to assume ownership or re-allocate the land absent the liquidator's involvement and approval of the Commissioner for Cooperatives

Reasoning

Sections 61-66 of the Cooperative Societies Act vest the assets of a society under liquidation in the liquidator, whose mandate must be discharged before assets revert. There was no evidence of the liquidator's discharge, consent or distribution scheme approved by the Commissioner, nor land control board consents for the subdivisions and transfers, making the whole exercise unlawful.

p. 14
04

Whether the subdivisions, allocations and transfers were constitutional

Holding

They were not; the change of reservation, survey, subdivisions, reallocations and transfers were declared unconstitutional, invalid, null and void ab initio

Reasoning

The land had been set apart under section 117(1)(c) of the retired Constitution for Abogeta societies. The setting apart procedure under section 12 of the Trust Land Act (notice, divisional board, public representation) was not followed, and the defunct council lacked capacity to alienate, so all resulting titles were invalid.

p. 14
05

Whether the petitioner's letters and council minutes conferred a proprietary interest

Holding

No; letters of allotment and minutes are mere invitations to treat or expressions of intention and do not confer proprietary rights in land

Reasoning

Following Philma Farm Produce and County Council of Meru v PCEA, the court held that the petitioner's allocation minutes and letters did not create protectable proprietary rights, particularly as the land remained reserved land, hence the petitioner was not granted registration of the 15 acres.

p. 14

Legal principles established

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  • Upon liquidation of a cooperative society, its property vests in the official liquidator and only the liquidator has capacity to deal with it; dispositions by any other body are void
  • Titles issued over trust/public land without compliance with the setting-apart procedure and statutory approvals are null and void
  • A registered title may be challenged where it was acquired illegally, unprocedurally or through a corrupt scheme
  • An ELC has jurisdiction to determine constitutional issues concerning the right to land

Court orders

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  1. 1.Declaration that the change of reservation on L.R Nkuene/Mitunguu/190 and the subsequent survey, subdivisions, reallocations and transfers to the respondents were unconstitutional, invalid, null and void ab initio
  2. 2.An order directed at the Land Registrar Meru Central to cancel all the change of reservations on Parcel no. Nkuene/Mitunguu/190 and the resultant subdivisions and titles nos. 1967, 1968, 1969, 1970, 1971, 1972, 1973, 1974 and 1975
  3. 3.No order as to costs, the suit being public interest litigation

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 20, 22, 23, 258, 260, 28, 29, 40, 41, 43, 47, 53, 61, 62, 165(3)(a)
  • Retired Constitution of KenyaSections 115, 117-120
  • Trust Land Act (Cap 288)Sections 12, 13, 53, 114-120
  • Environment and Land Court ActSection 13
  • Cooperative Societies ActSections 19, 61, 62, 63, 65, 66
  • Companies Act (repealed)Section 224
  • Land Registration ActSection 26(1)
  • Land Control Actland control board consents
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 4(2), 10, 11
  • Societies Actregistration of the petitioner
  • Local Government Actestablishment and administration of the defunct county council

Cases cited (26)

  • Gabriel Mutava & 2 others v M.D Kenya Ports Authority & another
    [2016] eKLR
  • Mohamud Iltarakwa Kochale and 5 others vs Lake Turkana Wind Power Ltd and 4 others, Aaron Iltele Lesiannlam and 4 others (interested parties)
    (2021) eKLR
  • Anarita Karimi Njeru vs Rep
    (1976-1980) KLR 1272
  • Mumo Matemu vs Trusted Society of Human Rights Alliance and 5 others
    (2012) eKLR
  • In the Matter of the National Land Commission
    (2015) eKLR
  • Chemey Investment Ltd v Attorney General and 2 others
    [2018] eKLR
  • Arithi Highway Development Ltd v West End Butchery and 6 others
    [2015] eKLR
  • Joash Onyango Oketo and 69 others vs Kenya Wildlife Service & 5 others
    (2019) eKLR
  • Angelo Mucee Kithira & 2 others v AG & 5 others
    [2017] eKLR
  • Raila Odinga and others vs IEBC
  • Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai and 4 others
    (2014) eKLR
  • Daniel Mugendi vs Kenya University & 3 others
    (2015) eKLR
  • Chelimo A. Marsin and 7 others vs OCS GSU Kirindon GSU camp and 7 others
    (2011) eKLR
  • Lt Col. Peter Ngari Kagume and 7 others vs AG
    (2006) eKLR
  • Patrick Mbau Karanja v Kenyatta University
    [2012] eKLR
  • Republic vs Paul Kihara Kariuki AG and 2 others exparte Law Society of Kenya
    [2020] eKLR
  • Chimweli Jangaa Mangale & 3 others vs Hamisi Mohamed Mwawasaa & 15 others
    [2016] eKLR
  • Maureen Ochieng and 4 others v Nairobi City County Government & 4 others, Anthony Tom Oluoch and (1001) others interested parties
    [2021] eKLR
  • Francis Mwenda & 113 others v Liquidator Abogeta Farmers Cooperative Society Ltd
    [2007] eKLR
  • New Kiamwangi Gumba Co. Ltd vs Kiambu Coffee Growers Cooperative Union & 2 others
    (2015) eKLR
  • Meshack Kirimi Mwithimbu and 7 others vs Liquidator Nkuene Farmers Cooperative Society Ltd and 16 others
    (2019) eKLR
  • Keekonyokie Farmers' Cooperative Society Ltd vs Peter Mositet and 18 others
    (2015) eKLR
  • Queensway Trustees Ltd vs Official Receiver and Liquidator Tanneries of Kenya Ltd
    [1983] eKLR
  • Philma Farm Produce & Supplies & 4 others vs AG and 6 others
    [2012] eKLR
  • County Council of Meru and 2 others vs PCEA Through The Registered Trustees
    [2020] eKLR
  • John Wekesa Khaoya v A.G
    [2013] eKLR
Jurisdiction invoked
Article 62(2) of the Constitution read together with Section 13(7) of the Environment and Land Court Act; Articles 22, 23(2) and 258 of the Constitution

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, "Diocese of Meru Registered Trustees v Kenya Tea Development Agency Limited & 8 others; County Government Of Meru & another (Interested Parties) (Election Petition E003 of 2020) [2022] KEELC 2569 (KLR)", Case Analysis (2022). Petition dated 25.9.2020 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2569/eng@2022-07-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.