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ELCPartially AllowedEnvironment & Land Petition 52 of 2019· [2022] KEELC 13835 (KLR)

Githii v Kenya Airports Authority & 4 others

Environment and Land Court
23 September 2022
9,347 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioner, an advocate, purchased LR No 209/12457 in 2013 from Christopher Omunyole, conducted an official search, paid the full purchase price, was registered and issued a certificate of title. After the National Land Commission (NLC) advertised titles allegedly encroaching on Jomo Kenyatta International Airport land (LR No 21919), she filed a replying affidavit and attended a hearing. Without furnishing reasons, the NLC published Gazette Notice No 1549 of February 15, 2019 recommending revocation of her title and issuance of a sub-lease to Kenya Airports Authority. The NLC did not enter appearance. The court framed four issues and held: (1) the Petitioner lawfully acquired title, no fraud or illegality having been proved, and the overlap claim unsupported by survey evidence; (2) she was a bona fide purchaser for value without notice, applying Katende v Haridar and Tarabana v Sehmi; (3) the revocation decision was ex-facie illegal, unconstitutional and void because the NLC failed to supply written reasons contrary to Article 47 and Section 6 of the Fair Administrative Actions Act, and because Section 14(7) of the NLC Act bars revocation against a bona fide purchaser; and (4) she was entitled to all reliefs except the declaration compelling compulsory acquisition, the court lacking jurisdiction over that statutory process. The court issued declarations upholding her Article 40 ownership, a permanent injunction and prohibition against implementing the revocation, and awarded general damages of Kes 10,000,000 jointly and severally against the Respondents, with costs to the Petitioner.

Key legal issues

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01

Lawfulness of the Petitioner's acquisition of title

Holding

The Petitioner lawfully acquired title; no fraud or illegality was established against the certificate of title issued by the Government

Reasoning

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.

p. 10
02

Bona fide purchaser status

Holding

The Petitioner was a bona fide purchaser for value without notice of any defect or illegality in the title

Reasoning

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.

p. 13
03

Legality and constitutionality of the revocation decision

Holding

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

Reasoning

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.

p. 16
04

Entitlement to reliefs

Holding

All reliefs granted except the declaration compelling compulsory acquisition; general damages of Kes 10,000,000 awarded

Reasoning

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.

p. 17

Legal principles established

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  • 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

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  1. 1.Declaration that the Petitioner is the lawful owner of LR No 209/12457 within the meaning of Article 40 of the Constitution
  2. 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. 3.Declaration that the impending revocation, re-possession and issue of a sub-lease violates the Petitioner's Article 40 rights
  4. 4.Declaration that the impending revocation violates the Petitioner's rights under Articles 27, 28 and 50
  5. 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. 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. 7.Declaration that the Petitioner's title is protected by Articles 40 and 50 from arbitrary and unlawful action
  8. 8.Declaration that the Respondents are liable to compensate the Petitioner by way of damages for threatened loss of user
  9. 9.Declaration that the land parcel cannot be taken possession of until a court has found the title a nullity
  10. 10.Declaration that Gazette Notice No 1549 of February 15, 2019 is unlawful for contravention of Articles 27, 40, 47 and 50
  11. 11.General damages of Kes 10,000,000 awarded against the Respondents jointly and/or severally
  12. 12.Costs of the Petition awarded to the Petitioner, to be assessed and taxed by the taxing officer

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 27, 28, 40, 47, 50, 60, 68(c)(v)
  • Land ActSections 107-113, 120
  • Land Registration ActSections 24, 25, 28
  • National Land Commission Act, 2012Section 14
  • Fair Administrative Actions Act, 2015Sections 5, 6, 7
  • Evidence Act, Cap 80Sections 107, 108, 109

Cases cited (17)

  • Virendra Ramji Gudka & 3 Others v The Attorney General
    (2014) eKLR
  • Ocean View Plaza Ltd v Attorney General
    (2002) eKLR
  • Kuria Greens Ltd v Registrar of Titles & Another
    (2011) eKLR
  • Isaac Gathungu Wanjohi v The Attorney General & 6 Others
    (2012) eKLR
  • Japheth Azegele v Chief Land Registrar & 3 Others
  • Mbuthia Macharia v Anna Mutua Ndwiga & Another
    (2017) eKLR
  • Eastern Produce K Ltd v Christopher Atiado Osiro
    (2006) eKLR
  • Redcliff Holdings Ltd v Registrar of Titles & 2 Others
    Court of Appeal Civil Appeal No 77 of 2016
  • Samuel Murimi Karanja & 2 others v Republic
    [2003] eKLR

    Protection of holders of valid titles; court need not inquire how title was obtained absent clear fraud

  • David Peterson Kiengo & 2 Others v Kariuki Thuo
    [2012] eKLR

    Torrens system; indefeasibility of title and bona fide purchasers need not go behind the register

  • Gibbs v Messer
    (1891) AC 254

    Object of registration statute - saving purchasers from investigating history of author's title

  • Lawrence P Mukiri Mungai, Attorney of Francis Muroki Mwaura v Attorney General & 4 Others
    Nairobi Civil Appeal No 146 of 2014

    Ingredients of a bona fide purchaser for value without notice

  • Katende v Haridar & Company Ltd
    (2008) 2 EA 173

    Seven ingredients a purchaser must prove to rely on the bona fide purchaser doctrine

  • Hannington Njuki v William Nyanzi
    High Court Civil Suit Number 434 of 1996
  • Tarabana Company Limited v Sehmi & 7 others
    (Civil Appeal 463 of 2019) [2021] KECA 76 (KLR)

    A purchaser not involved in the fraud tainting the original acquisition is a bona fide purchaser whose title cannot be challenged

  • Macfoy v United Africa Co Ltd
    [1961] 3 All ER 1169

    A void act is a nullity; no court order needed to set it aside

  • Attorney General v Zinj Limited
    (Petition 1 of 2020) [2021] KESC 23 (KLR)

    Principles applicable in assessment and award of general damages for infringement of fundamental rights

Jurisdiction invoked
Articles 40, 47 and 165 of the Constitution; Environment and Land Court jurisdiction over constitutional property rights claims

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, "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.