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ELCPartially AllowedELC Mombasa (Suit number not stated in judgment)· [2024] KEELC 6884 (KLR)

Ethics & Anti Corruption Commission v Mwanyihaji & another (Environment & Land Case 146 of 2018) [2024] KEELC 6884 (KLR)

Environment and Land Court
23 October 2024
5,958 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court cancelled a fraudulently obtained Mombasa land title, returning public land to the Government and awarding KShs 5 million in damages.

What this practically means

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Executive summary

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The Ethics and Anti-Corruption Commission sued Mehasani Hatibu Mwinyihaji (1st defendant) and the Chief Land Registrar (2nd defendant) seeking declarations that the letter of allotment dated 20th March 2009 and subsequent lease over LR No. MN/1/12425 were fraudulently and corruptly obtained, that the land revert to the Government of Kenya, rectification of the register, an injunction, mesne profits, general damages and costs. The 1st defendant never entered appearance; the 2nd defendant filed a defence but called no evidence. The court held that even in an undefended suit the plaintiff had to prove its case on a balance of probabilities, and for fraud, to a standard above mere balance. Evidence from four EACC and Ministry of Lands witnesses showed the parcel was adjacent to the KPA Lighthouse and Kenya Navy Radar, needed for navigation, had an earlier lapsed allotment to one Zaharia which the Commissioner of Lands cancelled in 2005, and that no approved Part Development Plan existed. The court found the Commissioner of Lands acted beyond his delegated powers under Sections 3 and 7 of the Government Lands Act, and that the speed of processing the title (allotment on 20th March 2009, deed plan the next working day, grant signed by 1st April 2009) evidenced a corrupt scheme with complicity by the lands office. The title was nullified under Sections 26 and 80 of the Land Registration Act. The court declared the allotment and lease null and void, vested the land in the Government of Kenya, ordered rectification of the register, issued a permanent injunction against the 1st defendant, and awarded the plaintiff general damages of Kshs 5,000,000/= against the 1st defendant with costs. Mesne profits were refused as the land was unused, and damages were refused against the 2nd defendant for want of pleaded particulars.

Key legal issues

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01

Proof of fraud in an undefended land suit

Holding

The plaintiff proved fraud to a standard above a balance of probabilities, showing the land was not available for alienation and the allocation process was fraudulent

Reasoning

Despite the absence of the 1st defendant, the plaintiff had to prove its case to the heightened standard for fraud per R.G. Patel v Lalji Makanji. Evidence from PW1 to PW4 showed the property was needed by KPA for navigation, that there was no approved PDP, that an earlier allotment to Zaharia had lapsed and been cancelled, and that the title was processed with unusual speed, demonstrating complicity of the Commissioner of Lands' office.

p. 9
02

Whether the Commissioner of Lands acted ultra vires in alienating the suit property

Holding

The Commissioner of Lands acted beyond the powers delegated to him under Sections 3 and 7 of the Government Lands Act when he allotted land already alienated and needed for navigation

Reasoning

The Government Lands Act empowered the Commissioner to alienate only un-alienated government land. KPA had since 2002 sought the parcel for its lighthouse and navigation, and the land touched the beach adjacent to the KPA Lighthouse and Kenya Navy Radar. The allotment for residential use was therefore a nullity from the start, and no valid title could pass to the 1st defendant.

p. 8
03

Rectification of the register and nullification of title

Holding

The 1st defendant's title was nullified under Section 80 of the Land Registration Act and the register ordered rectified

Reasoning

Section 26(1) permits challenge of a title acquired through fraud or a corrupt scheme, and Section 80(1) permits rectification where a registration was obtained by fraud or mistake. Having found the allotment and Grant No. CR 45286 irregular and a nullity, the court directed cancellation of the entries and restoration of the property to the Government of Kenya.

p. 9

Legal principles established

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  • Even in an undefended suit, the plaintiff bears the burden of proving its case on a balance of probabilities
  • A certificate of title is challengeable on the ground of fraud or where it was acquired illegally, unprocedurally or through a corrupt scheme
  • In the absence of an approved Part Development Plan, a deed plan issued over the land could not be valid
  • A registered proprietor whose root of title is challenged must prove the legality of acquisition beyond the title instrument

Court orders

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  1. 1.Declaration that the letter of allotment dated 20th March 2009 in favour of the 1st defendant over LR No. MN/1/12425 was fraudulent, unlawful, corruptly irregular and null and void ab initio
  2. 2.Declaration that the registration of the lease and issuance of a certificate of lease over LR No. MN/1/12425 in favour of the 1st defendant was fraudulent, unlawful, corruptly irregular and null and void ab initio
  3. 3.Declaration that the parcel LR No. MN/1/12425 be vested in the Government of Kenya
  4. 4.Order directed to the Chief Land Registrar and Land Registrar, Mombasa, to rectify the register by cancelling all entries in favour of the 1st defendant and restore the property to the Government of Kenya
  5. 5.Permanent injunction restraining the 1st defendant from dealing with LR No. MN/1/12425 other than by way of surrender to the Government of Kenya
  6. 6.General damages of Kshs 5,000,000/= awarded against the 1st defendant for wrongful interference with public land
  7. 7.Costs of the suit awarded to the plaintiff, to be borne by the 1st defendant

Authorities

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Legislation

  • Land Registration ActSections 26(1), 80, 80(1)
  • Government Lands Act (repealed)Sections 3, 7
  • Physical Planning Act, 1996 (repealed)Section 3
  • Evidence ActSections 107 to 109
  • Civil Procedure ActSection 27

Cases cited (8)

  • Jabavu Village Limited versus Curzon
    (Environment & Land Case E040 of 2022) [2023] KEELC 17125 (KLR)
  • Kirugi and Another v Kabiya & 3 others
    [1987] KLR 347
  • Gichinga Kibutha v Caroline Nduku
    [2018] eKLR
  • Katende versus Haridas and Company Limited
    (2008) EA 173
  • R. G Patel versus Lalji Makanji
    (1957) EA 314
  • James Joram Nyaga & another versus Attorney General & another
    [2019] eKLR
  • Arthi Highway Developers Limited versus West End Butchery Limited & 6 others
    [2015] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land registered under the Land Registration Act; Sections 26 and 80 of the Land Registration Act (No. 3 of 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, "Ethics & Anti Corruption Commission v Mwanyihaji & another (Environment & Land Case 146 of 2018) [2024] KEELC 6884 (KLR)", Case Analysis (2024). ELC Mombasa (Suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6884/eng@2024-10-23

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