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ELCAllowedEnvironment & Land Case 16 of 2019· [2023] KEELC 16939 (KLR)

Makandi (Suing as the legal representative of the Estate of Anita Nkaimura M'Mutungi (Deceased)) v Attorney General & 3 others

Environment and Land Court
19 April 2023
CNC.K. Nzili
4,280 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Meru court cancelled titles created from an unlawful compulsory acquisition, ruling that land taken without notice or compensation must revert to the original owner's family.

What this practically means

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Executive summary

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The plaintiff, acting in person as legal representative of the estate of Anita Nkaimura M'Mutungi, sued the Attorney General, the District Surveyor, the District Land Registrar and the County Government of Meru, claiming that LR No. Ntima/Igoki/820, registered in her late mother's name, was compulsorily acquired in 1977 for the then Meru Municipality without notice or compensation, and was later re-planned, re-surveyed and re-allocated as LR No. 302 and subdivided into Meru Municipality Block II/882 and 883 for third parties. She sought cancellation of the new parcel numbers and reversion of the land to the estate. The defendants pleaded limitation, the Government Proceedings Act, statutory legality and lack of jurisdiction, but despite adjournment orders adduced no evidence at trial. The court framed four issues: proof of fraud/irregularity, non-joinder of new title holders, limitation, and whether the defendants justified the changes. Relying on authorities on compulsory acquisition under the repealed Land Acquisition Act, the court found no notice, survey, possession or compensation compliance was demonstrated, and official letters admitting non-compensation and de-gazettement created a legitimate expectation of reversion. Limitation could not bar a claim of breach of constitutional rights, and non-joinder did not defeat the suit. Under Section 80 of the Land Registration Act the court invalidated the acquisition and registration processes, cancelled resultant titles, ordered reversion to the estate, and awarded costs to the plaintiff.

Key legal issues

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01

Proof of fraud/irregularity in the compulsory acquisition and re-allocation

Holding

The plaintiff proved on a balance of probability that the acquisition, re-survey, re-planning and re-allocation were unprocedural, irregular and unlawful; the defendants offered no evidence.

Reasoning

The plaintiff produced the title, green card showing compulsory acquisition entry in 1977, and official letters admitting non-compensation and de-gazettement. The defendants, despite filing defences pleading legality and limitation, adduced no testimony or documents. The court found the acquisition process did not comply with the Land Acquisition Act's notice, survey and compensation requirements, rendering resultant titles invalid.

p. 7
02

Non-joinder of the new title holders

Holding

Non-joinder did not defeat the suit; it was for the defendants to call their witnesses and prove legality.

Reasoning

Relying on Mutuma Angaine (Supra), the court held the burden lies on he who alleges illegality to prove it, given the presumption of legality, and that it was the duty of a party to call its own witnesses. The defendants failed to discharge this burden, so the absence of the allottees as parties did not invalidate the claim.

p. 7
03

Limitation

Holding

The limitation defence failed; limitation cannot be pleaded against breach of constitutional rights, and the defendants produced no supporting evidence.

Reasoning

Citing Chief Land Registrar v Nathan Tirop Koech, the court held there is a rebuttable presumption of legality of government officers' acts, but a party cannot plead estoppel, acquiescence or limitation of time regarding breach of constitutional rights. The defendants' defences remained mere facts lacking evidential support since they declined to testify despite adjournment orders.

p. 7
04

Legitimate expectation of reversion of the land

Holding

The 4th defendant's letters admitting non-compensation and de-gazettement created a legitimate expectation that the land would revert to the plaintiff.

Reasoning

The letters of 18.1.1990, 18.7.2000 and 11.2.2014 from the municipal/county authorities acknowledged that no compensation was paid, the council no longer needed the land, and it had been de-gazetted. These admissions were not challenged in cross-examination and grounded the plaintiff's legitimate expectation of reversion.

p. 5

Legal principles established

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  • Fraud, illegality and irregularity must be specifically pleaded and proved.
  • Compulsory acquisition must strictly comply with statutory notice and compensation requirements; titles issued from a faulty process cannot stand.
  • A party cannot plead estoppel, acquiescence or limitation of time in matters regarding a breach of constitutional rights.
  • The ELC's jurisdiction is not ousted by the Constitution or the National Land Commission Act in dealing with historical land injustices based on fraud or breach of constitutional rights.

Court orders

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  1. 1.The acquisition, transfer, registration, re-survey and re-planning processes over the suit land are invalidated
  2. 2.Any resultant title deed issued and registered by the 2nd-3rd defendants or acquired by the 4th defendant is cancelled
  3. 3.The suit land shall revert to the names of the estate of the late Anita Nkaimura M'Mutungi
  4. 4.Costs to the plaintiff

Authorities

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Legislation

  • Government Proceedings ActSection 16; Section 13A
  • Public Authorities Limitations ActSection 3(1)
  • Land Adjudication Actnot specified
  • Land Registration ActSection 26; Section 80
  • Civil Procedure RulesOrder 53; Order 11
  • Land Acquisition Act (Cap 295) (repealed)Sections 3, 6, 7, 9(1), 17, 19(1), 33(a)
  • Survey ActSection 17
  • Constitution of KenyaArticle 40(3)(a) and (b)
  • National Land Commission Actnot specified

Cases cited (14)

  • Evanson Wambugu Gachugi vs Simon Wainaina Gatwiki & 2 others
    (2014) eKLR

    Relied on by plaintiff to support proof of claims and entitlement to cancellation of titles

  • Jonah Kabugo vs Martin Mbaya & another
    (2018) eKLR

    Pleadings of in-person litigants need not conform to usual format; function of pleadings is to define issues

  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR

    Precision in pleadings demands neither formulaic prescription nor formalistic utterance

  • IEBC vs Mutinda Mule
    (2014) eKLR

    Parties are bound by their own pleadings in an adversarial system

  • Ocean View Plaza Ltd vs A. G
    (2002) eKLR

    Compulsory acquisition is the only lawful way of taking land and must be done lawfully

  • Power Technics Ltd vs Attorney General & others
    (2012) eKLR

    Where property was acquired unlawfully, the unlawful act must be legally established

  • A.G vs Zinji Ltd
    (2021) eKLR

    Compulsory acquisition requires notice and prompt compensation; titles issued in violation offend Article 40(3)

  • Commissioner of Land vs Coastal Aquaculture Ltd
    C.A 256/1996

    Notice of acquisition must disclose the public body and purpose

  • Mathatani Ltd vs Commissioner of land & 5 others
    (2013) eKLR

    Gazette notice failing to state the registered owner is invalid; rights violated

  • Elizabeth Wambui Githinji & 29 others -V- KURA & 4 others
    (2019) eKLR

    Procedural steps of compulsory acquisition under the Land Acquisition Act

  • Virenda Ramji Gudka & 3 others vs AG
    (2014) eKLR

    Compulsory acquisition must be strictly done per the Constitution and law

  • Mutuma Angaine vs M'Marete M'Muronga
    (2011) eKLR

    Non-compliance with Sections 6 & 19 of Land Acquisition Act; burden of proving illegality; non-joinder

  • Chemey Investment Ltd vs AG and 2 others
    (2018) eKLR

    Titles issued from a faulty process cannot find validity under the law

  • Chief Land Registrar and 4 others vs Nathan Tirop Koech & 4 others
    (2018) eKLR

    Rebuttable presumption of legality; no estoppel or limitation against breach of constitutional rights; ELC jurisdiction over historical injustices

Jurisdiction invoked
Environment and Land Court jurisdiction under the Constitution and the Land Registration Act (Section 80 invoked); court held its jurisdiction not ousted by the National Land Commission Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Makandi (Suing as the legal representative of the Estate of Anita Nkaimura M'Mutungi (Deceased)) v Attorney General & 3 others", Case Analysis (2023). Environment & Land Case 16 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16939/eng@2023-04-19

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