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ELCPartially AllowedEnvironment & Land Petition 2 of 2021· [2022] KEELC 15329 (KLR)

Seventh Day Adventist Church (East Africa) Ltd v National Land Commission & 2 others; Board of Management Kakiptui SDA Church Primary School (Interested Party)

Environment and Land Court
8 December 2022
MMM. N. MWANYALE
5,583 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 confirmed a church's private title, quashed the National Land Commission's gazette notice, and ordered compensation instead of eviction for a school on the land.

What this practically means

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Executive summary

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The petitioner, registered proprietor of title No Nandi/kipkaren/Salient/400 since 2 June 1981 following adjudication, petitioned the Environment and Land Court at Kapsabet seeking permanent injunction, declarations and certiorari to quash the National Land Commission's recommendations of 7 September 2015 and Kenya Gazette Notice No 2328 of 12 March 2021, which directed surrender of its title for subdivision allocating 5 acres to Kakiptui SDA Primary School and 2 acres to the church. The respondents and interested party cross-petitioned, asserting the land was public land set aside for a school, that the title was procured by fraud, and that the NLC acted within its mandate to investigate historical land injustices. The court framed four issues and found, on the evidence, that no gazette notice, county council notice or divisional board minutes exhibited proved the land had been set aside under section 117 of the retired Constitution and section 13 of the Trust Lands Act; the annextures suggested an incomplete compulsory acquisition. The property was therefore private, and the NLC's recommendations and gazette notice were ultra vires, infringing article 40. The cross-petition failed for want of evidential burden under section 109 of the Evidence Act. However, because a public school occupies 5 acres, the court, following Uasin Gishu Memorial Hospital, declined to disrupt learning and instead ordered compensation and/or compulsory acquisition of the 5 acres, transfer to the school upon compensation, certiorari quashing the NLC proceedings, findings and gazette notice, and costs to the petitioner. The petition was thus partially allowed.

Key legal issues

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01

Status of the suit property - private or public land

Holding

The property is private property belonging to the petitioner; it was never validly set aside for public use

Reasoning

The court examined the setting-aside procedure under section 117 of the retired Constitution and section 13 of the Trust Lands Act. No gazette notice, county council notice or divisional board minutes were exhibited. Annextures suggested an incomplete compulsory acquisition with reallocation, inconsistent with land already set aside. The title and green card confirmed private ownership.

02

Whether the NLC acted ultra vires in recommending subdivision and gazetting the surrender of the title

Holding

The recommendations of 12 October 2015 and Gazette Notice No 2328 were ultra vires as the NLC has no mandate over private property

Reasoning

Having found the land private, the court held the NLC could not order or gazette its subdivision. The NLC acted on the mistaken belief that the property was public. The effect infringed the petitioner's right to property under article 40 of the Constitution, and the violations were pleaded with sufficient specificity.

p. 9
03

Whether the respondents proved their cross-petition that the land was public and the title a nullity

Holding

The cross-petition failed; the respondents did not discharge their evidential burden

Reasoning

Relying on section 109 of the Evidence Act and the Civil Aviation Ltd v Crusair Ltd dictum that pleadings are not evidence, the court found no notice, minutes or gazette notice exhibited proving the setting aside, and the compulsory acquisition process was never finalised.

p. 10
04

Appropriate remedy where a public school sits on private land

Holding

Compensation and/or completion of compulsory acquisition of the 5 acres, followed by transfer to the school, rather than eviction

Reasoning

Following Uasin Gishu Memorial Hospital, the court held it would be unconscionable to disrupt a public school serving a large population; equity favours compensation under section 75 of the retired Constitution, mirroring the petitioner's own pleaded particular of failure to follow compulsory acquisition procedure.

p. 11

Legal principles established

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  • The National Land Commission has no mandate over private property; recommendations and gazette notices touching private land are ultra vires
  • A certificate of title is prima facie evidence that the named proprietor is the absolute and indefeasible owner (section 26, Land Registration Act)
  • Pleadings are not evidence; averments depend upon evidence for proof of their contents
  • Setting aside trust land requires compliance with the statutory procedure including gazettement; absent the gazette notice and board minutes, no valid setting aside occurred

Court orders

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  1. 1.An order of certiorari quashing the proceedings before the National Land Commission which purported to investigate the petitioner's title No Nandi/kipkaren/salinet/400
  2. 2.An order of certiorari quashing the findings contained in the letter dated September 7, 2015 as well as Kenya Gazette Notice number 2328
  3. 3.An order of compensation and/or compulsory acquisition of the 5 acres of Nandi/kipkaren Salinet/400
  4. 4.Upon compensation or compulsory acquisition, the petitioner to execute transfer for the 5 acres where the public school is located to the school
  5. 5.Costs awarded to the petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(1), 2(1), 2(4), 3, 10, 23, 35(1), 40, 47, 50, 64, 67, 165(3)(d), 174, 258(1), 258(2), 259
  • Retired Constitution of KenyaSection 117; section 75
  • Land Registration ActSection 26
  • Land ActSection 42
  • National Land Commission ActSection 6
  • Trust Lands Act (repealed)Sections 7, 8, 13
  • Land Adjudication ActSections 13, 26, 26(a), 27
  • Evidence ActSection 109
  • Fair Administrative Action ActGenerally
  • Government Land Act (Cap 281) (repealed)Section 2
  • Physical Planning ActSection 2

Cases cited (8)

  • Geoffrey Kanu Kinyua v Commissioner of Lands and 11 others
    (2021) eKLR

    Indefeasibility of title

  • Charles Karaithe Kiarie and 2 others v Administrators of the Estate of John Wallace Mathare and 5 others

    Indefeasibility of title

  • Leakely Martin Mulonzi and another v Principal Secretary, Ministry of Lands, Housing and Urban Development and 4 others
    (2020) eKLR

    Burden of proof in rights violation claims (cited by respondents)

  • Kipsirgoi Investments Ltd v Kenya Anticorruption Commission
    Eldoret CACA No 288 of 2010

    Public land claims (cited by respondents)

  • Funzi Island Development Limited and 2 others v County Council of Kwale
    Civil Appeal No 252 of 2005

    Public land claims (cited by respondents)

  • AnnaRita Karimi Njeru

    Requirement to particularise constitutional violations (cited by respondents)

  • Civil Aviation Ltd v Crusair Ltd (No 1)
    (1987) KLR 103

    Pleadings are not evidence; averments depend on proof

  • Uasin Gishu Memorial Hospital Limited v Moi Teaching and Referral Hospital Board and 2 others
    (2017) eKLR

    Compensation rather than eviction where private property used as public property

Jurisdiction invoked
Article 165(3)(d) of the Constitution (enforcement of fundamental rights and freedoms)

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, "Seventh Day Adventist Church (East Africa) Ltd v National Land Commission & 2 others; Board of Management Kakiptui SDA Church Primary School (Interested Party)", Case Analysis (2022). Environment & Land Petition 2 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15329/eng@2022-12-08

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