Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedConstitution Petition dated 10th January, 2021 (filed 21st January, 2021)· [2022] KEELC 3063 (KLR)

Mbugua & another (suing as Administrator of the Estate of Simon James Mbugua) v Attorney General & 2 others (Environment and Land Constitutional Petition 2 of 2021) [2022] KEELC 3063 (KLR)

Environment and Land Court
23 June 2022
14,730 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~59 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ordered the government to pay Kshs. 421 million for illegally cancelling a family's land title by Gazette Notice instead of following the law.

What this practically means

#

Executive summary

#
The Petitioners, administrators of the estate of the late Simon James Mbugua, challenged the cancellation by Gazette Notice No. 2505 of 30th May, 1986 of the deceased's title to Land Reference No. Kilifi/jimba/338, which he had acquired through the Land Adjudication process with a certificate of title issued on 15th August 1979. The title was surrendered in 1995 on the strength of a promise of re-allocation which was never honoured; instead, the land was re-allocated to third parties, ultimately Denman Properties Limited. By consent of 18th November 2021 the Petition was confined to compensation, not restitution. The court framed seven issues and held that the Petition met the Anarita Karimi Njeru pleading threshold; that the deceased held an absolute and indefeasible title; that the taking was not a lawful compulsory acquisition under Article 40(3) and Part VIII of the Land Act; and that cancellation of a title by Gazette Notice, without a court order under Section 80 of the Land Registration Act and without a hearing, was ultra vires, illegal and unconstitutional. On quantum, the court considered three valuation reports (Kshs. 420M, Kshs. 72M and an independent Kshs. 287.5M), applied the 15% disturbance allowance under the Land (Assessment of Just Compensation) Rules 2017, factored in land appreciation in a beach area, and awarded a total of Kshs. 421,000,000.00 comprising market value of Kshs. 350,000,000, disbursement allowance of Kshs. 52,500,000, exemplary damages of Kshs. 17,500,000 (5%) and Kshs. 1,000,000 for the fence and farmhouse, with costs plus 14% interest. Judgment delivered on 23rd June 2022 by L.L Naikuni, J.

Key legal issues

#
01

Whether the Petition met the constitutional pleading threshold

Holding

Yes. The Petition pleaded the constitutional provisions violated with reasonable precision, satisfying the Anarita Karimi Njeru standard.

Reasoning

Relying on Anarita Karimi Njeru as endorsed in Mumo Matemu, the court held constitutional violations must be pleaded with reasonable precision. The court found the Petitioners had pleaded the constitutional basis in paragraphs 5 to 11 with absolute particularity and thus fully met the threshold for instituting the Petition.

p. 16
02

Whether the deceased was the absolute registered owner with indefeasible title

Holding

Yes. The deceased acquired the land through the Land Adjudication process, paid requisite fees, and held indefeasible title protected under the Registration of Land Act Cap 300 and the Land Registration Act.

Reasoning

The court applied Sections 26(1), 25(1) and 24 of the Land Registration Act and Sections 27, 28 and 143(1) of the repealed Registration of Land Act, holding that a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation. The Respondents adduced no evidence of fraud in the deceased's acquisition.

p. 21
03

Whether the taking of the land amounted to lawful compulsory acquisition

Holding

No. The land was never acquired through compulsory acquisition under Article 40(3) and Part VIII of the Land Act; no process was followed and no compensation paid.

Reasoning

The court outlined the statutory compulsory acquisition framework under Sections 107-118 of the Land Act and Article 40(3), noting the requirements of public purpose, due process and prompt just compensation. The evidence showed the taking occurred by executive fiat through a Gazette Notice, without investigation records, without a court order and without any compensation, and the land was then re-allocated to third parties.

p. 23
04

Whether the Government had power to cancel an individual's title deed by Gazette Notice

Holding

No. Cancellation without a court order under Section 80 of the Land Registration Act was ultra vires, illegal and wrongful; Section 79 permits rectification only with the proprietor's consent.

Reasoning

The court found Section 79 of the Land Registration Act allows rectification with the consent of the proprietor, while cancellation requires a court order under Section 80. The cancellation here was effected by Gazette Notice No. 2505 of 1986, with no hearing, no records at the Land Registry, and a green card reconstructed only pursuant to a court order of 8th May, 2015. The Government therefore acted ultra vires and unconstitutionally.

p. 23
05

What remedies flow from the unlawful acquisition and cancellation

Holding

Compensation based on market value plus 15% disturbance allowance, exemplary damages and reimbursement of improvements, quantified at Kshs. 421,000,000.00 in total.

Reasoning

With restitution excluded by consent, the court assessed compensation using the three valuation reports (Kshs. 420M, Kshs. 72M and Kshs. 287.5M), applied the Land (Assessment of Just Compensation) Rules 2017 providing a 15% disturbance allowance, factored land appreciation in a beach/tourism area post-COVID, and awarded market value, disbursement allowance, exemplary damages at 5% and a refund for the fence and farmhouse.

p. 25

Legal principles established

#
  • Cancellation of a registered title can only be effected through a court order under Section 80 of the Land Registration Act, not by Gazette Notice
  • Cancellation of titles without hearing the owner is illegal, invalid and unconstitutional
  • Deprivation of property must follow compulsory acquisition procedures under Article 40(3) and the Land Act, with prompt, just and full compensation

Court orders

#
  1. 1.Declaration that the purported cancellation of the Petitioners' title documents in respect of Land Reference Numbers Kilifi/jimba/338 was unconstitutional and unlawful
  2. 2.Declaration that the Kenya Gazette Notice No. 2505 of 1986 was unconstitutional and contrary to Article 40 of the Constitution of Kenya
  3. 3.Declaration that the subsequent transfer to third parties and issuance of new green cards by the Ministry of Lands/Government of Kenya and other subsequent actions was illegal and contrary to the Constitution
  4. 4.1st, 2nd & 3rd Respondents to pay the Petitioners total compensation of Kshs. 421,000,000.00, broken down as Kshs. 350,000,000.00 market value; Kshs. 52,500,000.00 disbursement allowance (15% of market value); Kshs. 17,500,000.00 general (exemplary/punitive) damages being 5% of the quantified damages; and Kshs. 1,000,000.00 refund for erection of a fence and farmhouse
  5. 5.1st, 2nd and 3rd Respondents to pay the Petitioners costs of the suit plus interest at 14% per annum from the date of judgment until payment in full

Authorities

#

Legislation

  • Constitution of Kenya (Repealed)Sections 75 and 84(1)
  • Constitution of Kenya, 2010Articles 22(1), 23, 25(c), 40(1) & (3), 47, 61, 165(3)(d) & 5, 162(2)(b), 259(1), Section 6 of the Sixth Schedule
  • Land Adjudication ActCap 284
  • Government Lands Act (Repealed)Cap 280
  • Registration of Land Act (Repealed)Cap 300, Sections 27, 28, 143(1), 144
  • Registered Title ActSection 23(1)
  • Land Registration ActSections 24, 25(1), 26(1), 79, 80(1) & (2), 81, 107
  • Land Act No. 6 of 2012Sections 7, 107-118, 111, 113, 114, 142(2); Part VIII
  • Land Acquisition Act (Repealed)Cap 295, Schedule (15% disturbance)
  • The Land (Assessment of Just Compensation) Rules2017, Rule 6
  • Land Regulations2017, Part V
  • Evidence ActCap 80, Section 173(1)
  • Civil Procedure ActCap 21, Section 27(1)

Cases cited (20)

  • Mumo Matemu – Versus – Trusted Society of Human Rights Alliance & Another
    (2013) eKLR
  • Anarita Karimi Njeru – Versus – Republic
    [1980] eKLR 154
  • Thorp – Versus – Holdsworth
    (1886) 3 Ch. D 637
  • Virenda Ramji Gudka and 3 others – Versus – Attorney General
    (2014) eKLR
  • Ocean View Plaza Ltd – Versus – Attorney General
    HCCC No. 527 of 2001
  • B' Khimfi Bhumfi Seyan & 2 Others – Versus – Attorney General
    (2015) eKLR
  • Masek Ole Timukoi & 3 others – Versus – Kenya Grain Growers Ltd & 2 others
    ELC (Nku) No. 272 of 2015 (OS)
  • M'Mbaoni M'Thaara – Versus – James Mbaka
    ELC (Chuka) No. 110 of 2017
  • Dr. Joseph M. K. Arap Ngok – Versus – Justice Moijo Ole Keiwua
    Civil Appeal 60 of 1992
  • Joseph Komen Somek – Versus – Patrick Kennedy Suter
    ELC Eldoret Appeal No. 2 of 2016 (2018) eKLR
  • Peter Njoroge Nganga – Versus – Kenya Reinsurance Corporation Limited & Others
    ELC (Kjd) No. 204 of 2017
  • Attorney General – Versus – Zinj Limited
    Supreme Court Petition No. 1 of 2020
  • The Attorney General & Chief Land Registrar – Versus – Rahimkhan Afzalkhan Rahimkhan & Others
    Civil Appeal No. 30 of 2018
  • Helena Kithinji – Versus – The Attorney General
    Nairobi Civil Miscellaneous Application No. 730 of 1989
  • James C Boit – Versus – Commissioner of Lands, Land Registrar, Kilifi & The Attorney General
    ELC Civil Case No. 119 of 2011 (formerly Nairobi HCCC No. 2577 of 1997)
  • Patrick Musimba v National Land Commission & 4 Others
    Petition No. 613 of 2014
  • Kanini Farm Limited – Versus – Commissioner of Lands
    (1986) KLR 310
  • John Kariuki Macharia – Versus – Commissioner of Lands
    [2014] eKLR
  • Reids Heweet & Company – Versus – Joseph
    AIR 1918 Cal. 717
  • Myres – Versus – Defries
    (1880) 5 Ex. D. 180
Jurisdiction invoked
Articles 165(3)(d) and 5 as read with Article 162(2)(b) of the Constitution of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mbugua & another (suing as Administrator of the Estate of Simon James Mbugua) v Attorney General & 2 others (Environment and Land Constitutional Petition 2 of 2021) [2022] KEELC 3063 (KLR)", Case Analysis (2022). Constitution Petition dated 10th January, 2021 (filed 21st January, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3063/eng@2022-06-23

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