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ELCAllowedNot stated in judgment· [2023] KEELC 584 (KLR)

Catholic Diocese of Nakuru, Registered Trustees v Lessonet & 4 others; Equity Bank Limited (Interested Party) (Environment & Land Case 12 of 2019) [2023] KEELC 584 (KLR)

Environment and Land Court
9 February 2023
1,788 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff, the Catholic Diocese of Nakuru, sued over plot No 498/311, now Eldama Ravine Township Block 1/199, which it claimed was allotted to it in 1978 by the Commissioner of Lands upon payment of Kshs 477/=. It sought declaration as legal allottee, cancellation of the certificate of lease issued to the 1st defendant, an order compelling the 3rd defendant to issue a grant in its favour, and a permanent injunction. The 2nd, 3rd and 4th defendants filed a defence and a cross-claim against the 1st defendant seeking nullification of the title, cancellation and reinstatement of the plaintiff as owner. The 1st defendant did not enter appearance; the 5th defendant and the interested party (Equity Bank, which held a Kshs 4,000,000 charge over the property securing a loan to Joshua Cheburet Kiptum) filed defences but did not testify. The court found approved plans of 1979 and a 1992 PDP consistently reserved the land for Catholic staff residential houses, with no other PDP supporting the 1st defendant's title issued on October 15, 2001. Applying Chemey Investments, Nelson Kazungu Chai and Alice Chemutai Too, the court held that reserved land is unavailable for re-allocation, that the 1st defendant's title was fraudulently obtained and a nullity, and that no valid charge could subsist over it. The plaintiff's claim and the cross-claim were allowed as prayed, with cancellation of the 1st defendant's title and registration of the plaintiff, and costs.

Key legal issues

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01

Availability for allocation of land reserved for a specific purpose

Holding

Land reserved for Catholic staff residential houses could not be allocated to the 1st defendant; the title obtained over it was fraudulent and a nullity.

Reasoning

The court found the plaintiff was allotted an unsurveyed plot in 1978, accepted the allotment and paid the requisite fee. Approved plans of 1979 and a 1992 PDP consistently showed the land reserved for Catholic staff houses, and no other PDP existed. Following Chemey Investments and Nelson Kazungu Chai, once land is reserved for a purpose it is not available for re-allocation, and allocation by the Commissioner without authority is a nullity.

p. 4
02

Validity of the charge held by the interested party

Holding

The interested party could not claim a valid charge over the suit property since the 1st defendant's underlying title was fraudulently obtained.

Reasoning

Applying Alice Chemutai Too, where a title advanced as loan security is tainted with fraud, the chargee bears the onus of challenging the claim of fraud and, failing that, no valid title capable of conveying a legal interest exists. The 1st defendant's title was carved from reserved land, so the Kshs 4,000,000 charge securing Joshua Cheburet Kiptum's loan conveyed no realizable security.

p. 4

Legal principles established

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  • Once land is reserved for a particular purpose, it is not available for re-allocation
  • An action taken by the Commissioner of Lands without legal authority is a nullity
  • A charge over land whose title was fraudulently acquired conveys no legal interest capable of being realized as security

Court orders

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  1. 1.Declaration that the plaintiff is the legal allottee of plot No 498/311 now Eldama Ravine Township Block 1/199
  2. 2.Compelling the 3rd defendant to cancel the certificate of lease issued to the 1st defendant for the suit property
  3. 3.Declaration that the allocation, transfer, registration and issuance of title over LR No Eldama Ravine Township Block 1/199 to the 1st defendant is null and void ab initio and was acquired unlawfully
  4. 4.Cancellation of the title issued in the name of the 1st defendant and entries made in the register
  5. 5.Compelling the 3rd defendant to issue a grant and subsequent registration documents for the suit property in favour of the plaintiff
  6. 6.Permanent injunction restraining the 1st defendant from entering, remaining on, or dealing with the suit property
  7. 7.Allowance of the plaintiff's claim and the cross-claim by the 2nd, 3rd and 4th defendants as prayed
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (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, "Catholic Diocese of Nakuru, Registered Trustees v Lessonet & 4 others; Equity Bank Limited (Interested Party) (Environment & Land Case 12 of 2019) [2023] KEELC 584 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/584/eng@2023-02-09

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