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ELCPartially AllowedNot stated in the judgment as extracted· [2024] KEELC 1317 (KLR)

Liyavo Farmers Co-operative Society v Kamau, Mukanzi & Litala (Being Sued as the Trustees of International ChildCare Trust Kenya) & 8 others; Area Member of Parliament, Kwanza Constituency & another (Interested Parties) (Environment & Land Case 37 of 2018) [2024] KEELC 1317 (KLR)

Environment and Land Court
12 March 2024
11,529 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~46 min to read original · ~4 min brief

The bottom line

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A Kenyan court voided a 1996 land transfer because its root was unprocedural, but the society suing got nothing—the land reverted to government trustees.

What this practically means

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Executive summary

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The plaintiff, a registered cooperative society of about 150 farmers resettled at Liyavo Settlement Scheme, sued nine defendants seeking vacant possession, injunctions, declarations that the subdivision and transfer of land parcel Trans Nzoia/Liyavo/212 (5 acres) to the 1st, 2nd and 3rd defendants was fraudulent and void, rectification of the register reverting the title to itself, mesne profits and costs. It claimed the parcel was reserved as a public utility (cereals store) for its members' benefit. The 1st and 2nd defendants and the 3rd defendant defended their chain of title rooted in an allocation to J.K. Koskei in 1989; the State defendants initially suggested the land was a public utility reserved for the Cereals and Produce Board. The court framed five issues. It found (1) the public utility status not proved, the accountability list being of doubtful provenance and no Part Development Plan produced; (2) the root allocation unprocedural, so no good title passed to the 1st defendant or subsequent transferees, applying Dina Management; (3) the suit not time-barred, being a continuing trespass; (4) the plaintiff failed to prove standing or any acquired right to the suit land, its certificate of registration being unauthentic and its claim relating to L.R. No. 5751 rather than the suit parcel; and (5) the plaintiff did not prove entitlement to ownership. Nonetheless, exercising Section 13(5) of the ELC Act, the court declared the 1996 transfer and subsequent entries void ab initio, cancelled all transactions on the parcel, ordered the 6th defendant to rectify the register reverting the title to the Settlement Fund Trustee, and directed each party to bear its own costs. Judgment delivered on 12 March 2024 by Hon. Dr. Iur Fred Nyagaka, Judge, ELC Kitale.

Key legal issues

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01

Whether the suit land was a public utility plot preserved for the Cereals and Produce Board

Holding

Not proved. The court was not satisfied the suit land was a public utility.

Reasoning

The court found the accountability list prepared after suit was filed, of unascertained authorship, bearing no letterhead and incomplete; DW1's testimony on public utility reservation departed from the pleadings; no Part Development Plan was produced; and public utilities can only be held by National or County Government, not a state corporation that was never enjoined. The 4th-9th defendants also filed no counterclaim to recover the plot.

p. 14
02

Whether the title to the suit land was obtained by fraud or a corrupt scheme

Holding

The acquisition by the 1st registered owner was unprocedural and unlawful, tainting subsequent entries.

Reasoning

Tracing the root to J.K. Koskei's allocation and the 1st defendant's acquisition from the Settlement Fund Trustee, the court found no evidence of compliance with the mandatory allocation procedure, including no Part Development Plan. Applying Dina Management, no good title could pass over an irregular first acquisition, rendering subsequent entries void regardless of absence of objection.

p. 16
03

Whether the suit was barred by limitation of time

Holding

Not barred; the suit is one for continuing trespass and the defendants remain in occupation.

Reasoning

The court adopted its earlier Ruling dated 29/05/2020 and Raichand Shah, holding that every continuance of trespass is a fresh trespass giving rise to a new cause of action daily. Since the 1st and 2nd defendants were still in occupation, the twelve-year limitation period under Section 7 of the Limitation of Actions Act did not apply.

p. 17
04

Whether the plaintiff had any right of claim

Holding

The plaintiff failed to establish standing or any acquired right over the suit land.

Reasoning

The plaintiff produced no allotment letters, receipts, ballot papers or member list; the offer letter related to L.R. No. 5751, not the suit land; its registration certificate was unauthentic; and there was no authority to file suit. The court presumed from absence of AGMs since 2016 that the plaintiff may have ceased to exist.

p. 19

Legal principles established

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  • Public land reserved for public utility plots must remain so until legally turned into private lands and cannot be allocated to private owners
  • No good title can pass from an irregular root; a defect in the first registered owner's acquisition taints all subsequent titles
  • Under the repealed Government Lands Act, a Part Development Plan must be drawn and approved before un-alienated government land could be allocated
  • A registered title is prima facie evidence of absolute ownership but may be challenged where obtained by fraud, misrepresentation, illegality, unprocedurally or through a corrupt scheme (Section 26(1), Land Registration Act)
  • Continuing trespass gives rise to a fresh cause of action from day to day, so limitation does not bar a suit while trespass continues

Court orders

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  1. 1.A declaration that the alienation, sale and subsequent transfer of land parcel no. Trans Nzoia/Liyavo/212 to the 1st defendant as the 1st registered owner on 17/07/1996 was illegal, made in absence of procedure and is void ab initio
  2. 2.A declaration that any subsequent entries made on the suit land after 14/04/1996 were unprocedural and void ab initio
  3. 3.An order of cancellation of all transactions, subdivisions, sale and subsequent transfers arising from land parcel No. Trans Nzoia/Liyavo/212
  4. 4.The 6th defendant to rectify the register book so as to remove the names of all parties therein and the title deed revert back to the proprietorship of the Settlement Fund Trustee
  5. 5.Each party to bear its own costs of the suit

Authorities

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Legislation

  • Cooperative Societies ActChapter 490, Laws of Kenya
  • Government Land Act (repealed)Section 2
  • Registration of Titles Act (repealed)
  • Land Registration ActSection 26(1)
  • Limitation of Actions ActSection 7
  • Environment and Land Court ActSection 13(5)
  • Land Laws (Amendment) Act2012
  • Non-Governmental Organizations Act
  • Constitution of KenyaArticle 40

Cases cited (7)

  • Dorice Atieno Rajoru & 145 Ors vs. Mjahid Suo-chairman Harambee Maweni Committee self-help group & 2 Ors
    [2016] eKLR
  • Huzefa Amirali & another vs. County Government of Uasin Gishu & another
    [2014] eKLR
  • Dina Management Limited vs. County Government of Mombasa & 5 others
    (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023)
  • Nelson Kazungu Chai & 9 others vs. Pwani University
    [2014] eKLR
  • African Line Transport Co Ltd vs. Attorney General
    Mombasa HCCC No 276 of 2013
  • Raichand Shah vs. Mistry Walji Naran Murji
    [2014] eKLR
  • Kitale ELC No. 53 of 2012; International Child Care Trust Kenya vs. David James Mbogo
Jurisdiction invoked
Environment and Land Court Act, Section 13(5) (original civil jurisdiction over 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, "Liyavo Farmers Co-operative Society v Kamau, Mukanzi & Litala (Being Sued as the Trustees of International ChildCare Trust Kenya) & 8 others; Area Member of Parliament, Kwanza Constituency & another (Interested Parties) (Environment & Land Case 37 of 2018) [2024] KEELC 1317 (KLR)", Case Analysis (2024). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1317/eng@2024-03-12

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