Mayfair Holdings Limited v County Commissioner Kisumu & 3 others; Ethics & Anti-Corruption Commission & another (Interested Parties) (Constitutional Petition 2 of 2019) [2024] KEELC 6332 (KLR)
The bottom line
#A Kenyan court cancelled Mayfair Holdings' land titles in Kisumu, confirming that a title obtained through fraud or illegal allocation protects no one.
What this practically means
#Executive summary
#Key legal issues
#Validity of the Petitioner's title to Plot No. 99
The Petitioner's title is invalid; Plot No. 99 belonged to Kenya Railways which subleased it to George Okungu, and the sale to the Petitioner was illegal, null and void
Plot No. 99 was a subdivision of Kisumu Municipality/Block 11/3, held by Kenya Railways as leasehold proprietor and subleased to George Okungu. Okungu paid rent to and required consent of the 4th Respondent. The Petitioner's certificate of lease incorrectly showed the Government of Kenya as lessor and omitted the 4th Respondent entirely, indicating fraud. Okungu, as sub-lessee, could not convey title from the Government of Kenya.
Validity of the Petitioner's title to Plot No. 100
The allocation of Plot No. 100 to Moses Onyango and George Nyakundi by the Commissioner of Lands was illegal, null and void; the Petitioner acquired no valid title
Plot No. 100 remained the property of Kenya Railways, which had subleased it to Prof. Bethwell Ogot. No evidence of surrender to the Government existed; it was not unalienated Government land available for allocation. The Commissioner of Lands' parallel allocation was fraudulent and amounted to abuse of office, so no valid interest passed to the Petitioner.
Validity of the Petitioner's title to Plot No. 187
Plot No. 187 was illegally created from a public road reserve and allocated to Wilred Mating'a Nyakundi; the Petitioner holds no valid title
Survey maps, the PDP and the Cadastral Checking Office Report showed the parcel was created by closing a road between Plots 88, 99 and 100, and the road-closure procedure was never followed. The RIM contained contradictory and fraudulent entries (creation by consolidation and simultaneous subdivision). Nyakundi held a nullity and could pass nothing to the Petitioner.
Violation of the Petitioner's Article 40 right to property
No violation; Article 40(6) excludes protection of unlawfully acquired property
Having found the Petitioner's titles nullities, the court held the Constitution does not protect illegal and fraudulent property interests, so the Respondents could not have infringed non-existent rights.
Reliefs in the cross-petition, counter-claim and ELC No. 767 of 2015
Kenya Railways, the EACC (save for two reliefs) and Prof. Ogot (save damages for trespass) were entitled to their respective reliefs
The evidence established Kenya Railways as lawful leasehold proprietor of Plots 99 and 100, the EACC's proof of fraud and that Plot 187 was a road reserve, and Prof. Ogot's registered sublease over Plot 100 entitling him to possession, though damages for trespass failed for want of evidence of entry.
Legal principles established
#- Indefeasibility of title is subject to Article 40(6) of the Constitution; unlawful acquisition defeats protection
- A registered proprietor whose root of title is challenged must prove the legality of the acquisition beyond the title instrument
- A title founded on a nullity is itself null and void and passes no interest
- The Commissioner of Lands may only alienate unalienated Government land; land already leased or reserved for public purpose cannot be allocated
Court orders
#- 1.The Petitioner's petition dated 22nd March 2019 is dismissed
- 2.Declaration that the conduct and actions of the Respondents in the cross-petition contravened the Constitution and infringed the cross-petitioner's rights under articles 2(1), (2), 3(1), 10(1), (2), 22(1), 23(1), 40 and 47
- 3.Declaration that Kenya Railways Corporation is the legitimate leasehold proprietor of Kisumu Municipality Block 11/99 and 11/100 subject to registered sub-leases
- 4.Declaration that the 1st Respondent in the cross-petition's claim of ownership is unlawful and constitutes trespass
- 5.Declaration that the purported transfer/registration of the parcels in favour of the 1st Respondent in the cross-petition was unconstitutional
- 6.Order of mandamus compelling the County Land Registrar Kisumu to cancel the leases and certificates of lease for Plot Nos. 99 and 100 issued to the Petitioner and its predecessors
- 7.Order of mandamus compelling the County Land Registrar Kisumu to rectify the registers for Plot Nos. 99 and 100, restoring the cross-petitioner as leasehold proprietor with sub-leases to George Okungu and Prof Bethwel Ogot
- 8.Permanent injunction restraining the 1st, 2nd and 3rd Respondents in the cross-petition from dealing with Plot Nos. 99 and 100
- 9.Permanent injunction restraining the 1st Respondent in the cross-petition from interfering with the cross-petitioner's quiet possession of Plot Nos. 99 and 100
- 10.Permanent injunction restraining Mayfair Holdings Limited from dealing with Kisumu Municipality Block 11/187
- 11.Declaration that registration of leases for Plot Nos. 99, 100 and 187 in the name of Mayfair Holdings Limited was null and void ab initio
- 12.Declaration that Kisumu Municipality Block 11/187 was a road reserve
- 13.Order that the County Land Registrar Kisumu rectify the register for Plot No. 187 by cancelling the leases and restoring the Government of Kenya as sole owner for a road
- 14.Declaration that Prof. Bethwel A. Ogot is the proprietor of a sub-lease from Kenya Railways Corporation in respect of Plot No. 100 and is entitled to immediate possession and user thereof
- 15.Declaration that the certificate of lease held by Mayfair Holdings Limited for Plot No. 100 was obtained fraudulently, is null and void and conferred no title
- 16.The 1st, 2nd and 3rd Defendants in ELC No. 767 of 2015 shall hand over possession of Plot No. 100 to Prof. Bethwel A. Ogot, in default of which he may apply for their eviction
- 17.Costs of the petition and cross-petition to the 4th Respondent/cross-petitioner, payable by the Attorney General and the 1st and 2nd Interested Parties in the cross-petition
- 18.The 1st Interested Party in the main petition to bear its own costs of the petition and counter-claim
- 19.Costs of ELC No. 767 of 2015 to Prof. Bethwel A. Ogot, payable by the 1st, 2nd and 4th Defendants in that suit
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya (Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Mayfair Holdings Limited v County Commissioner Kisumu & 3 others; Ethics & Anti-Corruption Commission & another (Interested Parties) (Constitutional Petition 2 of 2019) [2024] KEELC 6332 (KLR)", Case Analysis (2024). Petition dated 22nd March 2019 (consolidated with Kisumu ELC No. 767 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6332/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.