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ELCPartially AllowedHCCC No. 149 of 2004 (transferred to ELC, Eldoret)· [2024] KEELC 3778 (KLR)

Seventh Day Adventist Church East Afric Union Limited v Allan George Njogu Residence Ltd & another (Environment & Land Case 189 of 2012) [2024] KEELC 3778 (KLR)

Environment and Land Court
9 May 2024
2,833 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled titles bought over land already allocated to a church decades earlier, confirming purchasers must investigate occupation before buying.

What this practically means

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Executive summary

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The Seventh Day Adventist Church of East Africa sued Allan Njogu Residence Ltd and the Commissioner of Lands seeking cancellation of titles to plots Eldoret Municipality/Block 11/14, 15 and 16, alleging the titles were obtained fraudulently. The plaintiff proved that it applied for un-surveyed plots in 1974, that the Eldoret Municipal Council allocated the plots for a church and workers' houses pursuant to minutes of 13 March 1974 and 13 April 1987, and that it has occupied the land since 1974. The 1st Defendant, which purchased the plots in 1995/1996 from Zipporah Seroney under allotment letters issued irregularly to her daughters over land already alienated, was registered as proprietor in 1996. The court found the plots had been reserved for religious purposes and allocated to the plaintiff, rendering them unavailable for reallocation; the sale by Zipporah Seroney conveyed no good title, and the 1st Defendant's certificates of lease, though prima facie indefeasible under section 26 of the Land Registration Act, were impeached as having been acquired unlawfully and unprocedurally. The court also noted that the 1st Defendant's claim over plot 11/14 had already been determined in Eldoret ELC Case No. 227 of 2012 (Obaga J), which cancelled that title and remained unappealed. Judgment was entered for the plaintiff: a permanent injunction over all three plots, cancellation of the titles to plots 11/15 and 16, rectification of the register in the plaintiff's favour, and registration of plot 11/14 in the plaintiff's name pursuant to the Salvation Army judgment. Each party was ordered to bear its own costs.

Key legal issues

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01

Regularity of the allocation of the suit plots to the plaintiff

Holding

The allocation of plots Block 11/14, 15 and 16 to the plaintiff was regular; the plots were reserved for religious purposes and allocated to the plaintiff before the 1st Defendant obtained titles.

Reasoning

The plaintiff produced minutes of the Eldoret Municipal Council of 13 March 1974 and 13 April 1987, a rental scheme plan and correspondence showing allocation of the plots for a church and workers' houses, and the church had been in occupation since 1974. There was no evidence that the allocation to the plaintiff was unlawful, and the plots were no longer available for allocation to anyone else.

p. 4
02

Lawfulness of the sale by Zipporah Seroney to the 1st Defendant and subsequent registration

Holding

The sale and the subsequent registration in the 1st Defendant's name were irregular and unlawful as the allotment letters relied upon were tainted with illegality.

Reasoning

The suit properties were already alienated and allocated to the plaintiff, so the 1995 allocation to the Seroney family was irregular. Zipporah Seroney therefore could not pass good title. The 1st Defendant's director admitted the church was in occupation when he purchased, and failed to inquire how it came into possession; the titles obtained were thus unprocedural and impeachable under section 26 of the Land Registration Act.

p. 5
03

Impeachability of the 1st Defendant's certificate of lease

Holding

The certificates of lease, though prima facie evidence of ownership under section 26 of the Land Registration Act, must be impeached because they were acquired unlawfully and unprocedurally.

Reasoning

The court accepted that section 26 confers prima facie indefeasibility, but held the proviso permits impeachment where registration was acquired fraudulently, through misrepresentation or illegality or unprocedurally. Here the allotment letters underlying the chain of title were issued over land already alienated to the plaintiff and in its possession, so the titles could not stand.

p. 5

Legal principles established

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  • Where land has been allocated, it cannot be reallocated unless the first allocation is validly and lawfully cancelled
  • A certificate of title under section 26 of the Land Registration Act can be impeached where registration was acquired fraudulently, through misrepresentation, illegality or unprocedurally
  • Reservation of land for a particular purpose renders that land alienated and incapable of further allocation

Court orders

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  1. 1.A permanent injunction restraining the Defendants, their servants and/or agents from interfering with, trespassing onto, surveying, sub-dividing, alienating, selling, transferring, leasing or in any other way dealing with plots Eldoret Municipality/block 11/14, 15 and 16
  2. 2.The titles held by the 1st Defendant in respect of land parcels nos. Eldoret Municipality/block 11/15 and 16 are cancelled
  3. 3.The Land Registrar Uasin Gishu County is directed to rectify the register in respect of land parcels nos. Eldoret Municipality/block 11/15 and 16 by removing the name of Allan George Njogu Residence Limited and replacing them with the name of the plaintiff or its registered trustees as appropriate
  4. 4.Pursuant to the judgment in Eldoret ELC Case No. 227 of 2012, the Land Registrar is directed to register land parcel no. Eldoret Municipality/block 11/14 in the name of the Plaintiff
  5. 5.Each party shall bear its own costs

Authorities

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Legislation

  • Land Registration Actsection 26
  • Government Lands Actsection 3
  • Physical Planning Actsection 3 (Cap 286)

Cases cited (3)

  • Ali Mohammed v David Gikonyo Nambacha & Another
    Kisumu HCCA No. 9 of 2009
  • The General of the Salvation Army (Kenya Territory) v Allan George Njogu Residence Ltd & 4 Others
    Eldoret ELC Case No. 227 of 2012
  • Kipsirgoi Investments Limited v Kenya Anti-Corruption Commission
    (2011) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (suit transferred from the High Court in 2012)

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, "Seventh Day Adventist Church East Afric Union Limited v Allan George Njogu Residence Ltd & another (Environment & Land Case 189 of 2012) [2024] KEELC 3778 (KLR)", Case Analysis (2024). HCCC No. 149 of 2004 (transferred to ELC, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3778/eng@2024-05-09

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