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ELCPartially AllowedNot stated in the excerpt (Kisumu Environment and Land Court suit)· [2024] KEELC 5077 (KLR)

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)

Environment and Land Court
4 July 2024
11,653 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~47 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Ethics and Anti-Corruption Commission, suing under section 11(1)(j) of the EACA Act and ACECA, sought recovery of Kisumu Municipality/Block 7/446 on behalf of Kenya Railways Corporation, alleging that the parcel, part of land vested in Kenya Railways, was illegally allocated by the then Commissioner of Lands to Cheramba Enterprises Ltd in December 1990 and informally on-sold to Harjot Singh Dhanjal, who obtained a certificate of lease in January 1992. The 1st Defendant claimed to be a bona fide purchaser for value with an indefeasible title; the 2nd Defendant did not defend and the 3rd Defendant, though filing a defence, gave no evidence. Relying on survey plans from 1902, 1908 and 1935, the Registry Index Map, and the vesting legal notices, and adopting the earlier finding in Kisumu ELC Petition No. 19 of 2019, the court held the suit property was reserved for Kenya Railways and was not unalienated government land available for allocation. Further, under the proviso to section 7 of the repealed Government Lands Act, only the President could alienate such land and there was no evidence of presidential approval. The allocation and transfer were therefore null and void, and indefeasibility under the Land Registration Act and Article 40(6) could not protect an unlawfully acquired title. Judgment was entered for the Plaintiff: declarations of nullity, rectification of the register restoring the property to Kenya Railways, vacant possession within 90 days and a permanent injunction. Mesne profits, general damages and costs were refused because the Interested Party delayed recovery for over 15 years while the 1st Defendant developed and occupied the property, with each party ordered to bear its own costs.

Key legal issues

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01

Lawfulness of the allocation of the suit property to the 2nd Defendant

Holding

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

Reasoning

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.

02

Whether the 1st Defendant acquired valid title

Holding

No; the 2nd Defendant had no proprietary interest to pass and the resulting title was not protected by indefeasibility

Reasoning

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.

p. 19
03

Reliefs

Holding

Declarations, rectification of the register, vacant possession and injunction granted; mesne profits, general damages and costs refused

Reasoning

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.

p. 19

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Order for vacant possession, the 1st Defendant to vacate within 90 days, failing which warrants of eviction may issue
  5. 5.Permanent injunction restraining the 1st and 2nd Defendants from dealing with the suit property
  6. 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

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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, "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.