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ELCPartially AllowedNot stated in the judgment as provided· [2022] KEELC 3140 (KLR)

Kenya Anti-Coruption Commission v Bisengi (Environment & Land Case 48 of 2009) [2022] KEELC 3140 (KLR)

Environment and Land Court
31 May 2022
4,495 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The court cancelled a Kisii land title, ruling that property reserved for public trust land cannot be privately allocated without following the law.

What this practically means

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Executive summary

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The Environment and Land Court at Kisii (J.M Onyango J) determined an unopposed suit filed on March 3, 2009 challenging the Defendant's title to Kisii Municipality Block 3/456, a subdivision of Kisii Municipality Block 3/332. The Plaintiff averred that the parent parcel was trust land vested in the County Council of Gusii under Gazette Notice No 1937 of May 31, 1966 and reserved by Part Development Plan No KSI/37/85/10 for a Community Development Centre; that between 1998 and 2000 the Commissioner of Lands, without reference to the Council, caused its subdivision and change of user; and that the transfer of the suit property to the Defendant on July 24, 2002 was fraudulent and ultra vires. After formal proof (the Defendant having failed to enter appearance or file a defence despite substituted service), three witnesses for the Plaintiff - a physical planner, an investigator and a surveyor - gave uncontroverted evidence of the public purpose facilities on the land and of the absence of any Council resolution, fresh PDP, gazette notice, allotment letter, payment, approved survey or beacon certificate supporting the alienation. The court framed four issues and held that the suit property was trust land; that the Defendant's acquisition was fraudulent; that the resultant title, being tainted with fraud, was ultra vires, illegal, null and void ab initio; and that the Plaintiff had proved the claim on a balance of probability. By orders of May 31, 2022 the court declared the lease null and void, directed the Land Registrar Kisii to rectify the register by cancelling the lease and Certificate of Lease, issued a permanent injunction restraining dealings with the property other than by transfer to Kisii County Government as successor to the Council, and awarded costs to the Plaintiff. The court applied Daudi Kiptugen v Commissioner of Lands on the materiality of the acquisition process, and KACC v Online Enterprises and Fran Investments on nullification of fraudulently acquired titles.

Key legal issues

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01

Trust land status of the suit property

Holding

Kisii Municipality/Block3/456 is a subdivision of land set apart as trust land vested in the County Council of Gusii under the Trust Land Act.

Reasoning

The Plaintiff's uncontroverted evidence (Gazette Notice No 1937 of May 31, 1966; PDP No KSI/37/85/10; testimony of PW1, PW2 and PW3) established that the parent parcel Kisii Municipality Block 3/332 was reserved for a Community Development Centre on trust land vested in the Council. The Defendant did not enter appearance or rebut this evidence.

p. 6
02

Fraud in acquisition

Holding

The Defendant acted fraudulently in the acquisition/alienation of the suit property.

Reasoning

The court compared the statutory alienation procedure with the facts: no Council resolution authorising the transfer, no fresh PDP or change-of-user approval, no gazette notice or public auction, no allotment letter, no proof of payment, no authenticated survey or beacon certificate, and the original title was never surrendered. The Council Chairman had objected to the subdivision in 1995 and the Commissioner of Lands stopped processing.

p. 8
03

Validity of the Defendant's title

Holding

The Defendant's title is tainted with fraud and is null and void ab initio.

Reasoning

Applying Daudi Kiptugen v Commissioner of Lands, the process of acquisition is material; a title not acquired through proper process is not good. The fraudulent alienation of the parent parcel meant the resultant title could not stand. The court also relied on KACC v Online Enterprises and KACC v Fran Investments where fraudulently acquired titles were nullified.

p. 8
04

Entitlement to reliefs

Holding

The Plaintiff proved the claim on a balance of probability and was granted declaration, rectification, injunction and costs.

Reasoning

The Defendant neither entered appearance nor filed a defence despite substituted service; the case proceeded by formal proof and the Plaintiff's evidence stood unchallenged. The court entered judgment for the Plaintiff, granting the declaration, rectification of the register, a permanent injunction and costs, though no express order for vacant possession was made.

p. 9

Legal principles established

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  • The process of acquisition of title is material; a document of title not acquired through proper process is not a good title.
  • Land reserved for public use under an approved Part Development Plan cannot be alienated to private individuals without following the statutory procedure, including a fresh PDP, gazettement and public auction.

Court orders

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  1. 1.A declaration that the lease made to the Defendant on July 24, 2002 in respect of Kisii Municipality Block 3/456 was issued ultra vires the statutes and fraudulently and is null and void ab initio.
  2. 2.The Land Registrar Kisii County is directed to rectify the Register by cancelling the lease and Certificate of Lease issued on July 24, 2002 in respect of Kisii Municipality Block 3/456 in favor of the Defendant.
  3. 3.An order of permanent injunction restraining the Defendant, his servants, employees, agents or assigns from trespassing upon, transferring, leasing, wasting and/or dealing with the suit property other than by way of transferring the said title to Kisii County Government as successor to the County Council of Gusii.
  4. 4.The costs of the suit to be borne by the Defendant.

Authorities

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Legislation

  • Constitution of Kenya (repealed)section 115
  • Trust Land Actgeneral provisions on vesting of trust land
  • Government Lands Act (Cap 280, repealed)sections 3, 11, 13, 15
  • Registration of Titles Act (Cap 281, repealed)general
  • Local Government Act (Cap 265, repealed)section 144(3)
  • Land Planning Actgeneral
  • Physical Planning Actgeneral
  • Anti-Corruption and Economic Crimes Act, 2003corrupt conduct provisions

Cases cited (12)

  • 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
  • Ali Mohamed Dagane (Granted Power of Attorney by Abdullahi Muhumed Dagane, suing on behalf of the Estate of Mohamed Haji 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
  • 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 for and on behalf of the Commissioner of Lands & 2 others
    [2014] eKLR
  • African Line Transport Co Ltd v The Hon AG
    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 jurisdiction of the Environment and Land Court over the suit land (Environment and Land Court Act); not expressly stated in the judgment

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 Bisengi (Environment & Land Case 48 of 2009) [2022] KEELC 3140 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3140/eng@2022-05-31

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