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ELCPartially AllowedPetition dated 22nd February 2022· [2024] KEELC 262 (KLR)

Gori Investment Limited v Land Registrar, Kakamega District & 2 others (Environment & Land Petition E002 of 2022) [2024] KEELC 262 (KLR)

Environment and Land Court
31 January 2024
3,362 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner won on procedure — the Land Registrar must notify you of objections — but courts won't protect your property rights until ownership is settled in a civil suit.

What this practically means

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Executive summary

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The petitioner, claiming to be the registered proprietor of land parcel Kakamega/Municipality/Block 1/583, petitioned the court alleging violations of its rights to protection of property (Article 40), access to information (Article 35) and fair administrative action (Article 47). It complained that after it applied for replacement of a missing register, Gazette Notice No 11836 of 5th November 2021 was published, but the register was never reconstructed after the 60-day period lapsed. The first and second respondents asserted that records showed the third respondent as registered proprietor since 5th November 2012 and that the petitioner's certificate of lease was not genuine; the misplaced register had been recovered in the registry. The third respondent claimed ownership, occupation (a carwash and containers) and alleged the petitioner's title was a forgery. The court heard affidavit evidence, including cross-examination of the County Land Registrar, George O. Nyangweso, and written submissions. It held that the dispute was really over ownership of one parcel, which cannot be resolved in a petition, and that Article 40 protection only attaches to property truly belonging to the claimant; the property claim failed. The access-to-information claim failed because no specific written application was made under Section 8 of the Access to Information Act. However, the first respondent violated Article 47 by failing to formally notify the petitioner of the third respondent's oral objection and of the decision not to reconstruct the register. The court declared the petitioner's right to fair administrative action violated and made no order as to costs. The petitioner abandoned prayers (d), (e) and (f). Parties were left to litigate ownership in an ordinary civil suit.

Key legal issues

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01

Whether the right to protection of property under Article 40 was violated

Holding

Not violated; the petitioner did not establish ownership of the suit property given the unresolved ownership dispute with the third respondent.

Reasoning

Both petitioner and third respondent wave title documents over the same parcel, with the registry stating the petitioner's title is not genuine. Article 40 protection extends only to property lawfully and truly belonging to the claimant; where ownership is disputed, that dispute must first be resolved in an ordinary civil suit, which the petition cannot substitute for.

p. 5
02

Whether the right of access to information under Article 35 was violated

Holding

Not violated; the petitioner made no specific written application for information as required by Section 8 of the Access to Information Act.

Reasoning

The letter of 16th November 2018 was written by the Director of Land Administration, not the petitioner, and the Gazette Notice was issued by the first respondent; neither constitutes an application for information. Absent a written request with sufficient particulars, no violation of the right of access to information was demonstrated.

p. 6
03

Whether the right to fair administrative action under Article 47 was violated

Holding

Violated by the first respondent, who failed to formally notify the petitioner of the third respondent's oral objection and of the decision not to reconstruct the register.

Reasoning

Following the petitioner's application, Gazette Notice No 11836 was published. The third respondent lodged an oral objection, but the first respondent neither notified the petitioner of the objection nor of the decision not to proceed with reconstruction, and did not revoke the gazette notice. Only verbal notification was given. This fell short of expeditious, lawful, reasonable and procedurally fair administrative action.

p. 6
04

Whether an undated affidavit is fatally defective

Holding

Not fatal where the deponent was cross-examined on the affidavit's contents in open court.

Reasoning

Section 5 of the Oaths and Statutory Declarations Act requires the jurat to state the place and date of attestation. However, because the petitioner applied for and conducted cross-examination of the deponent George O. Nyangweso, it acknowledged and interrogated the affidavit's contents, so nothing significant turns on the omission.

p. 4

Legal principles established

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  • Constitutional protection of property under Article 40 is available only in respect of property truly belonging to the claimant; an underlying ownership dispute must first be resolved.
  • Ownership disputes must be litigated in an ordinary civil suit, not through a bill-of-rights petition.
  • An applicant for information must make a specific written application with sufficient particulars under Section 8 of the Access to Information Act.
  • A party who applied for reconstruction of a lost register is entitled to formal notification of any objection and of the decision not to proceed; failure amounts to a violation of fair administrative action.

Court orders

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  1. 1.A declaration that the petitioner's right to Fair Administrative Action was violated by the first respondent
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 35
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 27(4)
  • Constitution of Kenya, 2010Article 65
  • Access to Information ActSection 8
  • Oaths and Statutory Declarations ActSection 5
Jurisdiction invoked
Constitution of Kenya, 2010 - Articles 35, 40 and 47 (bill of rights petition)

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, "Gori Investment Limited v Land Registrar, Kakamega District & 2 others (Environment & Land Petition E002 of 2022) [2024] KEELC 262 (KLR)", Case Analysis (2024). Petition dated 22nd February 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/262/eng@2024-01-31

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