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ELCPartially AllowedEnvironment & Land Case 53B of 2021· [2023] KEELC 16215 (KLR)

Ethics & Anti-Corruption Commission v Sitienei & another

Environment and Land Court
9 March 2023
7,392 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~30 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a Nakuru land title, ruling that public land set aside for the Pyrethrum Board could never be validly allocated to a private individual.

What this practically means

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Executive summary

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The Ethics and Anti-Corruption Commission sued Alexander Kipngetich Sitienei (1st Defendant) and Wilson Gachanja (2nd Defendant, former Commissioner of Lands), seeking a declaration that the certificate of lease over Nakuru Municipality Block 8/30 was fraudulently and irregularly acquired, rectification of the register to restore the property to Pyrethrum Processing Company of Kenya (PPCK), a permanent injunction, and general damages for fraud. The Commission's evidence established that the land was surveyed in 1977 and the Registry Index Map amended in 1981 to create the parcel for the Pyrethrum Board of Kenya, so it was already set apart as public land when the 1996 allotment letter issued to the 1st Defendant. The court held the land was not unalienated government land and the Commissioner of Lands had no authority to alienate it, citing the limitation of the Commissioner's powers under the repealed Government Lands Act. The allotment process was also procedurally flawed: no application, no presidential allocation, and no Part Development Plan accompanied the allotment letter. However, the court found the plaintiff failed to prove fraud against either defendant to the required standard, and the 2nd Defendant closed his case without testifying. Notwithstanding the failure on fraud, the court held the allocation and registration were a nullity, so the 1st Defendant's certificate of lease conferred no good title. The suit was allowed: a declaration of nullity, rectification of the register restoring the property to PPCK, and a permanent injunction were granted, with costs and interest payable by the defendants. General damages for fraud were not awarded as fraud was unproved.

Key legal issues

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01

Whether the suit land was public property set apart for the Pyrethrum Board of Kenya

Holding

Yes - the land was surveyed and set apart for the Pyrethrum Board in 1981 and was therefore not available for alienation to the 1st Defendant

Reasoning

The survey map F/R 142/148 was prepared in 1977 and the RIM amended on 13 May 1981 to create the parcel for the Pyrethrum Board of Kenya, and never amended since. By the time of the 1996 allotment the property had already been allocated to the Board as public land, though no certificate of title issued to the Board.

p. 7
02

Whether the allotment process was proper in law

Holding

No - the process was a nullity for want of application, presidential allocation and a Part Development Plan

Reasoning

Under the repealed Government Lands Act, allocation required municipal council advice, an approved PDP, determination of terms under section 11, gazettement and auction, and an allotment letter accompanied by a PDP. None of these steps was followed; the allotment letter had no PDP attached and the Commissioner had no power to allocate land not earmarked for religious, charitable, educational or sports purposes.

p. 10
03

Whether the defendants acted fraudulently

Holding

No - fraud was not proved to the required standard, though the allocation was an illegality

Reasoning

Fraud must be specifically pleaded and distinctly proved; it cannot be inferred from the facts. PW6 could not say who manipulated records, and no charge existed against the 2nd Defendant. However, the court found the allocation itself was a nullity because the land was not available for allocation.

p. 12
04

Whether the 1st Defendant holds a good title

Holding

No - the certificate of lease is a nullity and not a good title; the register is to be rectified in favour of PPCK

Reasoning

Section 26(1) of the Land Registration Act protects title except where acquired illegally, unprocedurally or through a corrupt scheme. Since the root allotment was a nullity, the resultant certificate of lease conferred no interest and the plaintiff's case was proved on a balance of probabilities.

p. 13

Legal principles established

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  • Land already set apart for public use by a government institution is not unalienated government land and cannot be validly allocated by the Commissioner of Lands
  • An allotment letter issued without an application, presidential allocation or a Part Development Plan is a nullity and confers no title
  • A title founded on a nullity is not a good title notwithstanding registration

Court orders

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  1. 1.Declaration that the Certificate of Lease held and/or in favour of the 1st Defendant in respect of Nakuru Municipality Block 8/30 was irregularly and fraudulently acquired, consequently null and void, ineffectual to confer any right, interest or title upon the 1st Defendant
  2. 2.Order for rectification of the land register by cancellation of the lease, certificate of lease and all entries on the Land Register in respect of Nakuru Municipality Block 8/30 held or made in favour of the 1st Defendant so as to restore the suit property to the PPCK
  3. 3.Order of permanent injunction against the 1st Defendant, his agents, servants or assigns restraining them from leasing, transferring, charging, taking possession or in any other manner dealing with the suit property other than by transfer, delivery up or surrender of the same to PPCK
  4. 4.Costs and interest to be paid by the defendants

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 68(v)
  • Land Registration ActSection 26(1)
  • Government Lands Act (Repealed)Sections 2, 3, 7, 11, 13, 15
  • Physical Planning Act, Cap 286Section 3
  • National Land Commission ActSection 14
  • Limitation of Actions ActSection 7
  • Agricultural Food Authority Act No. 13 of 2013
  • Registration of Titles Act (Repealed), Cap 281

Cases cited (13)

  • Arthi Highway Developers Limited v West End Butchery Limited and 6 Others
    [2015] eKLR

    Prima facie evidence of proprietorship under section 26(1) Land Registration Act

  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009

    Burden on a registered proprietor when title is challenged

  • Edward Mwangi Irungu v Chief Land Registrar & 3 Others
    [2018] eKLR

    Limitation of actions defence

  • Kipsirgoi Investments Limited v Kenya Anti-Corruption Commission
    High Court Civil Appeal No. 288 of 2010

    Land planned for public use already alienated; subsequent lease irregular

  • James Joram Nyaga & Another v the Hon. Attorney General & Another
    [2007] eKLR

    Commissioner of Lands had no authority to alienate; power reserved to the President

  • Harison Mwangi Nyota v Naivasha Municipal Council & 20 others
    [2019] eKLR

    Role of municipal council in advising Commissioner of Lands on alienation

  • Nelson Kazungu Chai & 9 Others v Pwani University College
    (2014) eKLR

    PDP must be drawn and approved before allocation; survey follows allotment

  • Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others
    182/1992 (Nyeri)

    Allotment letter is an invitation to treat conferring no interest in land

  • Dr. Joseph N.K. Arap Ng'ok v Justice Moijo Ole Keiyua & 4 others
    C.A.60/1997

    Allotment letter does not constitute a contract or confer interest in land

  • Mbau Saw Mills Ltd v Attorney General for and on behalf of the Commissioner of Lands) & 2 others
    [2014] eKLR

    Lapsed allotment offer confers no property right

  • African Line Transport Co. Ltd v The Hon. AG
    Mombasa HCCC No. 276 of 2013

    Allotment letter invariably accompanied by a PDP; planning precedes survey

  • Kinyanjui Kamau v George Kamau Njoroge
    [2015] eKLR

    Fraud must be specifically pleaded and distinctly proved

  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR (Civil Appeal No. 106 of 2000)

    Fraud must be distinctly alleged and proved, not inferred from facts

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land (Article 162(2)(b) Constitution; ELC Act) - suit commenced by plaint dated 17th June 2021

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, "Ethics & Anti-Corruption Commission v Sitienei & another", Case Analysis (2023). Environment & Land Case 53B of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16215/eng@2023-03-09

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