Ethics & Anti-Corruption Commission v Cherogoe & 3 others (Environment and Land Case 54B of 2021) [2024] KEELC 1488 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a Nakuru land title, ruling that illegally allocated public land cannot be rescued even by later buyers.
What this practically means
#Executive summary
#Key legal issues
#Whether Nakuru Municipality Block 5/251 was alienated or un-alienated government land at allocation
The suit property was excised from Block 5/219 which was alienated for existing government offices under approved PDP No. 234, so it was not un-alienated government land and was not available for allocation; even if it had been, the power to alienate lay with the President, not the Commissioner of Lands, and no valid interest passed to the 1st defendant.
The court relied on the PDP No. 234 approved on 14 December 1984 showing the whole of Block 5/219 was alienated for existing government offices, and on evidence that the parcel housed government offices, law courts and police. Section 3 of the repealed Government Lands Act vests the power to alienate unalienated government land in the President, with only limited delegation to the Commissioner for religious, charitable, educational or sports purposes. The Minister's authorisation had no basis in law.
Whether the 2nd and 3rd defendants were bona fide purchasers for value without notice
No. The root of title was illegal; no executed sale agreement or registered transfer from the 1st defendant was produced, and the 1st defendant denied selling the property while serving a jail term, so no valid title passed to the 3rd defendant.
Relying on Katende v Haridar, a bona fide purchaser must hold a certificate of title acquired in good faith for valuable consideration without notice of fraud. Here the title was over land illegally excised from public land; the 2nd defendant produced no sale agreement signed by the 1st defendant and no registered transfer. Indefeasibility under section 26 of the Land Registration Act does not protect titles acquired illegally, unprocedurally or through a corrupt scheme.
Whether Wilson Gachanja was personally liable
He was not personally liable because he acted as commissioner of lands and fraud on his part was not proved; many officers, including the Minister for Lands, were involved.
Evidence showed allocation was not a one-man process: the letter of allotment was signed by Mr Osodo, availability was confirmed by Mrs Amiani, and the Minister (Hon J.K. Mulinge) approved the allocation. Gachanja did not sign the government approval. Since fraud must be distinctly proved and none was proved against him personally, no personal liability attaches to the holder of the office of Commissioner of Lands.
Legal principles established
#- Land already alienated for government offices is not un-alienated government land available for allocation; allocation of reserved public land is illegal and confers no interest
- A title acquired illegally or unprocedurally cannot be protected by the court notwithstanding indefeasibility under section 26 of the Land Registration Act
- A bona fide purchaser of a title with an illegal root cannot be protected; where the root of title is challenged the doctrine of bona fide purchase does not apply
- Fraud must be specifically pleaded and distinctly proved to a standard higher than the ordinary balance of probabilities
Court orders
#- 1.A declaration that the allocation and issuance of lease over Land Parcel Number Nakuru Municipality Block 5/251 by the 4th Defendant and subsequent transfers to the 2nd and 3rd Defendants is null and void ab initio and incapable of conferring any estate, interest or right
- 2.An order that the registration of lease over Land Parcel Number Nakuru Municipality Block 5/251 and all entries subsequent thereto be cancelled
- 3.That the registration of the 2nd and 3rd Defendant as lessees of Land Parcel Number Nakuru Municipality Block 5/251 be and is hereby cancelled
- 4.A permanent injunction to restrain the 3rd Defendant, its agents, servants, assigns or any other person from charging, transferring, leasing, wasting, entering, developing, sub-dividing, occupying and/or dealing with land parcel number Nakuru Municipality Block 5/251
- 5.Each party to bear own costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court (Constitution of Kenya, 2010, Article 162(2) and the Environment and Land Court Act) - not expressly cited in judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics & Anti-Corruption Commission v Cherogoe & 3 others (Environment and Land Case 54B of 2021) [2024] KEELC 1488 (KLR)", Case Analysis (2024). Nakuru Municipality Block 5/251 suit - ELC Nakuru (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1488/eng@2024-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.