Ethics and Anti-Corruption Commission v Harjot Singh Dhanjal (Sued as the Legal Representative of the Estate of Satwant Singh Dhanjal) & 2 others; Kenya Railways Corporation (Interested Party) (Environment and Land Case Civil Suit E020 of 2022) [2024] KEELC 5077 (KLR)
The bottom line
#Kenya's anti-corruption watchdog successfully recovered Kisumu railway land that was illegally allocated in 1990, but delayed action cost the state damages and costs.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the allocation of the suit property to the 2nd Defendant
The allocation was null and void because the land was reserved for the Interested Party and was not available for alienation, and the Commissioner of Lands lacked power to alienate it
Survey plans from 1902, 1908 and 1935, the RIM for Kisumu Block 7, and the vesting legal notices established that the suit property fell within land reserved for and vested in Kenya Railways Corporation. There was no evidence of de-gazettement or surrender. Further, the proviso to section 7 of the Government Lands Act reserved alienation of unalienated land to the President, and there was no evidence of presidential approval. The allocation was also speculative, the 2nd Defendant on-selling before accepting the allotment.
Whether the 1st Defendant acquired valid title
No; the 2nd Defendant had no proprietary interest to pass and the resulting title was not protected by indefeasibility
Section 26(1)(b) of the Land Registration Act and Article 40(6) of the Constitution exclude protection of property unlawfully acquired. Following Munyu Maina, a registered proprietor whose root of title is challenged must prove the legality of acquisition. The 1st Defendant did not establish due diligence or a lawful root of title; a nullity could not found a valid title.
Reliefs
Declarations, rectification of the register, vacant possession and injunction granted; mesne profits, general damages and costs refused
The court held the Plaintiff proved its case on a balance of probabilities and granted the declaratory, rectification, possession and injunctive reliefs. However, the delay of the Interested Party, which watched the 1st Defendant develop and occupy the property from 2004 until recovery proceedings began in 2019, made an award of mesne profits, damages and costs unjust.
Legal principles established
#- Land reserved for a public body is not unalienated government land and is not available for allocation by the Commissioner of Lands unless the reservation is surrendered, revoked or cancelled
- Under the proviso to section 7 of the Government Lands Act, the power to alienate unalienated land was vested in the President, not the Commissioner of Lands
- Indefeasibility of title does not protect a title acquired illegally, unprocedurally or through a corrupt scheme
- A transfer of a null and void interest confers no valid interest on the transferee
Court orders
#- 1.Declaration that the allocation of Kisumu Municipality/Block 7/446 by the 3rd Defendant to the 2nd Defendant was null and void and ineffectual to confer any right, interest or title
- 2.Declaration that the subsequent transfer to the 1st Defendant and the issuance of a lease and certificate of lease to the 1st Defendant were null and void
- 3.Order directing the Chief Land Registrar to rectify the register by cancelling the 1st Defendant's registration and restoring the property to the Interested Party
- 4.Order for vacant possession, the 1st Defendant to vacate within 90 days, failing which warrants of eviction may issue
- 5.Permanent injunction restraining the 1st and 2nd Defendants from dealing with the suit property
- 6.Each party shall bear its own costs of the suit
- Jurisdiction invoked
- Section 11(1)(j) of the Ethics and Anti-Corruption Commission Act 2011 and the Anti-Corruption and Economic Crimes Act 2003
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Harjot Singh Dhanjal (Sued as the Legal Representative of the Estate of Satwant Singh Dhanjal) & 2 others; Kenya Railways Corporation (Interested Party) (Environment and Land Case Civil Suit E020 of 2022) [2024] KEELC 5077 (KLR)", Case Analysis (2024). Not stated in the excerpt (Kisumu Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5077/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.