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ELCPartially AllowedEnvironment & Land Case 242 of 2018· [2023] KEELC 19926 (KLR)

Ethics and Anti-Corruption Commission v Chepkole & 4 others

Environment and Land Court
22 September 2023
5,831 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's anti-corruption agency successfully cancelled an unlawful land allocation reserved for government housing, though the official who signed the lease escaped personal liability.

What this practically means

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Executive summary

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The Ethics and Anti-Corruption Commission sued five defendants seeking cancellation of the allocation and lease of land parcel Nakuru Municipality Block 5/221, which it alleged was reserved for government housing known as St Xavier Estate, with twenty government houses occupied by civil servants. It sought declarations of nullity, cancellation of registrations, a permanent injunction against the 4th defendant, and costs. The 1st and 2nd defendants did not enter appearance; the 3rd defendant did not participate; the 4th defendant was under liquidation and its counterclaim had been struck out; only the 5th defendant, a former Commissioner of Lands, defended. The court framed two issues: whether the parcel was unlawfully alienated, and costs. Relying on the Registry Index Map showing the parcel as unsurveyed, a letter from the Director of Physical Planning confirming no approved development plan, and evidence of the government houses and civil-servant occupation, the court found the alienation illegal: no Part Development Plan existed and land reserved for public housing was not available for private allocation. The 5th defendant produced no evidence that the land was available for alienation. However, the court declined to hold the 5th defendant personally liable: the allotment letter was signed by another officer, he signed only the lease in his official capacity, no specific relief was sought against him, and no evidence of personal liability was led. The suit succeeded: the allocation, lease and subsequent transfers were declared null and void, registrations were cancelled, a permanent injunction issued against the 4th defendant, the land was ordered registered in the name of the Permanent Secretary to the Treasury in trust for the Ministry of Housing and Urban Development, and costs were awarded to the plaintiff against the defendants.

Key legal issues

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01

Whether land parcel No. Nakuru Municipality Block 5/221 was unlawfully alienated

Holding

Yes - the alienation was unlawful because there was no Part Development Plan, the property was unsurveyed, and it was reserved for government housing with twenty government houses occupied by civil servants

Reasoning

The plaintiff produced the RIM showing the parcel as unsurveyed, a letter from the Director of Physical Planning confirming no approved development plan existed, and evidence of twenty government houses occupied by civil servants paying rent. The 5th defendant produced no evidence that the land was available for alienation. In the absence of a PDP and given the public reservation, the alienation and lease were illegal and a nullity.

p. 9
02

Whether the 5th defendant should be held personally liable for the illegal alienation

Holding

No - no personal liability was established against the 5th defendant

Reasoning

The letter of allotment was signed by P. Amiani for the Commissioner of Lands, not the 5th defendant; the only document he signed was the lease, in his official capacity. No specific relief was sought against him personally and the plaintiff led no evidence proving personal liability or misfeasance in office.

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Legal principles established

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  • Under the repealed Government Lands Act, a Part Development Plan must be drawn and approved before unalienated Government land can be allocated, and a letter of allotment based on the approved PDP is then issued
  • Land reserved and developed for a public purpose (government housing) is not available for alienation to private parties

Court orders

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  1. 1.A declaration that the allocation and issuance of a lease over land parcel number Nakuru Municipality Block 5/221 on 16/11/1998 by the 5th defendant to Saleh Chepkole and Titus Kipkemboi and the subsequent transfers to Pembeni Limited and Liberty Assurance Company Limited is null and void
  2. 2.The registration of lease over land parcel number Nakuru Municipality Block 5/221 in favour of Saleh Chepkole and Titus Kipkemboi and all entries subsequent thereto are cancelled
  3. 3.A permanent injunction restraining the 4th defendant by itself, its agents, servants, assigns or any other person whatsoever from charging, transferring, leasing, wasting, entering, developing, subdividing, occupying and/or dealing in any manner with land parcel No. Nakuru Municipality Block 5/221
  4. 4.The land parcel known as Nakuru Municipality Block 5/221 shall be registered in the name of the Permanent Secretary to the Treasury to hold in trust on behalf of the Ministry of Housing and Urban Development
  5. 5.The costs of the present suit shall be borne by the defendants

Authorities

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Legislation

  • Constitution of KenyaArticles 25, 27, 47, 50
  • Government Land Act (repealed)Sections 3, 8, 9
  • Anti-Corruption and Economic Crimes Act, 2003Sections 2, 7(1)(h)
  • Evidence ActSections 107, 108
  • Limitation of Actions ActSection 7

Cases cited (16)

  • John Peter Mureithi & another vs The Republic
    [2006] eKLR, Nairobi Misc. Civil Application No. 158 of 2005

    Issuance of lease in violation of public interest doctrine is null and void

  • Njau vs City Council of Nairobi
    KLR [1983]

    Plaintiff's locus standi to bring the suit

  • Kenya Anti-Corruption Commission vs Asis Limited & Others
    Miscellaneous Application No. 386 of 2003

    Plaintiff's locus standi

  • The Town Council of Ol'Kalou vs Ng'ang'a General Hardware
    Nairobi Civil Appeal No. 269 of 1977

    Nullity of ultra vires alienation

  • African Line Co. Ltd vs The Attorney General
    Mombasa HCC No. 276 of 2003 [2007] eKLR

    Alienation process: planning first, then survey; estoppel inapplicable to nullities

  • Champakalal Ramn Shah vs The Attorney General & another
    Mombasa HCC No. 145 of 1997

    Due process in alienation of government land

  • Shiva Mombasa Limited vs Kenya Revenue Authority & another
    Mombasa HCC No. 171 of 2004 eKLR

    Due process in alienation

  • Rhyl Urban Amusement Limited
    (1959) ALL ER

    Personal liability for ultra vires acts

  • Kenya Anti-Corruption Commission vs Bhangra Limited & another
    Civil Application No. 185 of 2009 [eKLR]

    Personal liability for ultra vires acts

  • Pashito Holdings & another vs Paul Nderitu Ndungu and others
    Civil Appeal No. 138 of 1997

    Personal liability for ultra vires acts

  • Reg vs Deputy Governor of Parkhurst Prison & another
    [1992] AC58

    Tort of misfeasance in public office

  • Three Rivers District Council & other vs Governor & Company of the Bank of England No. 3
    [2000] 3 ALL ER 1

    Tort of misfeasance in public office

  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR

    Fraud must be specifically pleaded and proved

  • EACC vs Alexander Kipngetich Sitienei & another
    ELC 53B of 2021

    Burden of proving fraud

  • Joshua Okungu and another vs the Chief Magistrate's Court ACC Nairobi and another
    [2014] eKLR

    Abuse of court process in suing over multi-stage allocation process

  • Nelson Kazungu Chai & 9 others v Pwani University
    [2014] eKLR

    PDP requirement before allocation of unalienated government land; court adopted its reasoning

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over disputes relating to public land

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 and Anti-Corruption Commission v Chepkole & 4 others", Case Analysis (2023). Environment & Land Case 242 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19926/eng@2023-09-22

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