Githii v Kenya Airports Authority & 4 others
The bottom line
#Kenya's Environment and Land Court stopped the National Land Commission from revoking a landowner's title and awarded her KES 10 million in damages.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the Petitioner's acquisition of title
The Petitioner lawfully acquired title; no fraud or illegality was established against the certificate of title issued by the Government
The Petitioner's uncontroverted testimony traced the sale, transfer and registration. No evidence showed the title did not originate from the Chief Land Registrar, no evidence impugned the survey plan FR No 255/38 from the Director of Survey, and the acreage of LR No 21919 was shown to be unreduced, undermining the overlap claim. The deponent was also not shown to be a professional surveyor.
Bona fide purchaser status
The Petitioner was a bona fide purchaser for value without notice of any defect or illegality in the title
Applying Katende v Haridar and Tarabana Company Limited v Sehmi, the court found the Petitioner held a certificate of title, purchased in good faith for value, conducted due diligence, and had no knowledge of or participation in any fraud. The 4th Respondent's failure to swear an affidavit supported an inference that the title was legitimate.
Legality and constitutionality of the revocation decision
The Gazette Notice recommendation to revoke was ex-facie illegal, unconstitutional and void for failure to furnish reasons and for contravening Section 14(7) of the NLC Act
Article 47(2) and Section 6 of the Fair Administrative Actions Act obliged the NLC to give written reasons; despite requests, only the bare gazette notice was supplied. Under Section 14(7) NLC Act, no revocation may be effected against a bona fide purchaser for value without notice. The decision was therefore null and void, per Macfoy v United Africa Co Ltd.
Entitlement to reliefs
All reliefs granted except the declaration compelling compulsory acquisition; general damages of Kes 10,000,000 awarded
The claim was meritorious given the findings on lawful acquisition, bona fide purchaser status and the void decision. However, the court cannot compel compulsory acquisition, which follows the statutory process in Sections 107-113 of the Land Act. The oppressive manner of the proceedings warranted monetary compensation for breach of rights.
Legal principles established
#- An administrative decision affecting rights must be accompanied by written reasons; failure to furnish reasons renders the decision presumptively without good reason and void
- Section 14(7) of the National Land Commission Act statutorily insulates the title of a bona fide purchaser for value without notice from revocation
- A void act is a nullity requiring no court order to set aside
Court orders
#- 1.Declaration that the Petitioner is the lawful owner of LR No 209/12457 within the meaning of Article 40 of the Constitution
- 2.Declaration that the NLC recommendation through Gazette Notice of February 15, 2019 to revoke the title is a violation of Article 40 and null and void ab initio
- 3.Declaration that the impending revocation, re-possession and issue of a sub-lease violates the Petitioner's Article 40 rights
- 4.Declaration that the impending revocation violates the Petitioner's rights under Articles 27, 28 and 50
- 5.Permanent Injunction prohibiting the Respondents from implementing the revocation, re-possession and issue of a sub-lease pursuant to Gazette Notice No 1549 of February 15, 2019
- 6.Order of Prohibition prohibiting implementation of the revocation unless and until compulsory acquisition under Section 120 of the Land Act and compliance with Article 40
- 7.Declaration that the Petitioner's title is protected by Articles 40 and 50 from arbitrary and unlawful action
- 8.Declaration that the Respondents are liable to compensate the Petitioner by way of damages for threatened loss of user
- 9.Declaration that the land parcel cannot be taken possession of until a court has found the title a nullity
- 10.Declaration that Gazette Notice No 1549 of February 15, 2019 is unlawful for contravention of Articles 27, 40, 47 and 50
- 11.General damages of Kes 10,000,000 awarded against the Respondents jointly and/or severally
- 12.Costs of the Petition awarded to the Petitioner, to be assessed and taxed by the taxing officer
- Jurisdiction invoked
- Articles 40, 47 and 165 of the Constitution; Environment and Land Court jurisdiction over constitutional property rights claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githii v Kenya Airports Authority & 4 others", Case Analysis (2022). Environment & Land Petition 52 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13835/eng@2022-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.