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ELCAllowedPetition dated January 25, 2019· [2022] KEELC 3557 (KLR)

Puley v Muhia & 3 others (Petition 12 of 2018) [2022] KEELC 3557 (KLR)

Environment and Land Court
4 May 2022
1,732 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court cancelled a fraudulent land registration in Kajiado, restoring a 1996 allottee as the rightful owner of the property.

What this practically means

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Executive summary

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The petitioner sought revocation of the first respondent's 2005 registration of LR Ngong/Township/Block 2/350, declarations that the second respondent's issuance of consent to transfer and rates clearance certificate in the name of Jeremiah Kipelian was void, declarations that the Machakos judicial review proceedings (Misc 39 of 2012) and Nairobi ELC No 1192 of 2014 did not determine ownership on the merits, and an order amending the register to restore his name. The petitioner relied on a March 26, 1996 allotment letter and a 2011 lease, and on Gazette Notice No. 1241 of February 4, 2011 revoking the first respondent's lease - which the Machakos court later quashed by mandamus. The first respondent pleaded he was an innocent purchaser for value from Kipelian. The land-allocating authorities (second, third and fourth respondents) supported the petitioner, asserting the Kipelian acquisition was fraudulent and that consent and clearance documents were forgeries. The court framed five issues. It held the registration breached the petitioner's Article 40 property rights; that declarations cannot be sought against a private individual for breach of fundamental rights (following Uhuru Muigai Kenyatta v Nairobi Star Publications), but here they were sought against government agencies; that the petitioner was the rightful owner, both Kipelian and the first respondent being caught by Article 40(6); and that the petitioner's offer had not lapsed. Judgment was entered for the petitioner as prayed, with costs borne by the first, second and third respondents.

Key legal issues

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01

Whether the petitioner's right to property under Article 40 was breached

Holding

Registration of the suit property in the first respondent's name breached the petitioner's right to property under Article 40.

Reasoning

The suit property had been allocated to the petitioner on March 26, 1996 and he could not be deprived of it without notice. The land allocating authorities (second, third and fourth respondents) unanimously confirmed the petitioner as the lawful allottee, and the acquisition by Jeremiah Kipelian was found fraudulent, engaging Article 40(6) which excludes protection of unlawfully acquired property.

p. 4
02

Whether declarations can be sought against a private individual for breach of fundamental rights

Holding

No - such an action cannot be maintained against another private individual, but here the declarations were sought against government agencies.

Reasoning

Relying on Uhuru Muigai Kenyatta v Nairobi Star Publications Ltd (2013) eKLR, the court held a private individual cannot be sued for declarations of breach of fundamental rights by another private individual. However, the declarations in this petition were sought against the second, third and fourth respondents, all Government agencies, so the doctrine did not defeat the petition.

p. 4
03

Who is the rightful owner of the suit property

Holding

The petitioner is the rightful owner.

Reasoning

First, all land allocating authorities represented in the case unequivocally stated the petitioner was the lawful allottee. Secondly, Article 40(6) excludes protection for unlawfully acquired property; since the acquisition by Kipelian was fraudulent, both Kipelian and the first respondent were caught by that provision, the Constitution prevailing under Article 2.

p. 4
04

Whether the petitioner's offer lapsed

Holding

It did not lapse.

Reasoning

Had the offer lapsed, the Commissioner of Lands would have said so. All correspondence in evidence from the land allocating authorities, apart from the first respondent's, showed inquiries found the petitioner to be the lawful allottee, which answered the question of lapse.

p. 4

Legal principles established

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  • A private individual cannot maintain an action for declarations against another private individual for breach of fundamental rights under the Constitution.
  • Constitutional protection of property does not extend to property unlawfully acquired.

Court orders

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  1. 1.Registration of the first respondent in 2005 as owner of LR Ngong/Township/Block 2/350 declared illegal and unlawful and revoked
  2. 2.Declaration that the second respondent's issuing of consent to transfer and rates clearance certificate in the name of Jeremiah Kipelian was unlawful, void and of no consequence
  3. 3.Declaration that the application in Machakos HC Misc 39 of 2012 was judicial review in nature and did not deal with the merits of ownership
  4. 4.Declaration that the proceedings and orders in Nairobi ELC No 1192 of 2014 did not deal with the merits of ownership of the suit land
  5. 5.Declaration that the allotment and registration of the petitioner as owner was valid, proper and lawful and is upheld
  6. 6.Order amending the register by removing the first respondent's name and retaining that of the petitioner
  7. 7.Costs to be borne by the first, second and third respondents
Jurisdiction invoked
Constitution of Kenya, 2010 - Article 40 (right to property), original petition

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, "Puley v Muhia & 3 others (Petition 12 of 2018) [2022] KEELC 3557 (KLR)", Case Analysis (2022). Petition dated January 25, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3557/eng@2022-05-04

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