Ethics & Anti-Corruption Commission v Agwata & 4 others; I&M Bank Limited & 2 others (Plaintiffs to the Counterclaim); Ethics and Anti-Corruption Commission & 4 others (Defendant to the Counterclaim) (Environment and Land Case Civil Suit 56 of 2019) [2024] KEELC 7404 (KLR)
The bottom line
#The High Court's land division dismissed the EACC's attempt to cancel two Nairobi properties, confirming the current owners and I&M Bank's charges are protected.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit properties namely L.R No's 209/12965 and 209/12966, respectively constituted unalienated government land and were thus available for allocation or otherwise
- 2.Whether the suit properties namely L.R No's 209/12965 and 209/12966 were lawfully allocated to and in favour of Hon Sharif Nasir [now deceased] or otherwise
- 3.Whether the 3rd and 4th Defendants lawfully acquired rights to and in respect of the suit properties; and whether the 3rd and 4th Defendants are bona fide purchasers for value without notice
- 4.What reliefs/remedies, if any ought to be granted
Key legal issues
#Whether the suit properties were unalienated government land available for allocation
The interests of the East African Common Services Authority lapsed upon its collapse; the land reverted to the Government and became unalienated government land available for alienation; the Plaintiff failed to prove any subsisting alienation or reservation
The court applied Section 4 of the Treaty of East Africa Community Mediation Agreement Act under which the Authority's assets vested in Kenya. The 1962 letter of allotment and grant in favour of the Authority stood extinguished, the original title having been informally surrendered to the Chief Land Registrar. The mere presence of a government house did not amount to reservation, and the Plaintiff produced no evidence of any reservation; it therefore failed to prove the land was alienated.
Whether the allocation to Hon Sharif Nasir was lawful
The alienation was lawful, being underpinned by a presidential direct allocation (DA) and preceded by preparation and approval of Part Development Plans; the Plaintiff failed to prove the pleaded fraud and illegality
The court found the PDPs were prepared by the directorate of physical planning and approved by the Commissioner of Lands before the letters of allotment issued. The letters of allotment bore a presidential authority (D/A) which the EACC investigator never interrogated. The Attorney General's statement of defence confirmed the legality of the alienation, and the Plaintiff adduced no evidence to impeach the presidential authority or discharge the burden of proving fraud.
Whether the 3rd and 4th Defendants were bona fide purchasers for value without notice
Yes - both undertook due diligence and are bona fide purchasers for value without notice; the 5th Defendant's chargee's rights are also valid
Both transferees procured official searches, wrote to and obtained the Commissioner of Lands' consent/clearance to the transfers, paid consideration, and dealt with a vendor holding registered grants. Government departments confirmed the propriety of the titles. The court found these facts satisfied the Katende/Kamere criteria for a bona fide purchaser and grounded a legitimate expectation, entitling the 3rd and 4th Defendants to legal protection and validating the charges in favour of the Bank.
Effect of non-joinder of the estate of Hon Sharif Nasir on the Plaintiff's first declaration
The court could not issue declarations impacting the rights of the deceased's estate which was not joined, as that would offend Article 50(1)
The first declaration sought in the Plaint would affect the estate of the deceased allottee, who was never joined as a party. The court held that issuing such declarations against a non-joined person would contravene the right to be heard under Article 50(1) of the Constitution, an additional independent ground for refusing the relief.
Legal principles established
#- Upon collapse of the East African Common Services Authority, its assets within Kenya reverted to and vested in the Government of Kenya by virtue of Section 4 of the Treaty of East Africa Community Mediation Agreement Act, and land so reverted became unalienated government land amenable to lawful alienation
- Surrender of a certificate of title may arise by operation of law or by informal handing over of the title to the Chief Land Registrar, without a formal registered surrender instrument
- The burden of proving fraud and illegality rests on the party alleging it, and a constitutional commission enjoys no exemption from the rules of evidence
- Title to public land lawfully comes into existence upon issuance of a letter of allotment, compliance with its terms and issuance of a title document under the relevant statute
- A party alleging unconstitutionality of an action must plead with precision the constitutional provisions impugned, preferably by way of constitutional petition; omnibus invitations are impermissible
Court orders
#- 1.The Plaintiff's suit vide Plaint dated the 20th February 2019 dismissed
- 2.Costs of the suit awarded to the Defendants
- 3.3rd Defendant's counterclaim allowed: declaration that the 3rd Defendant is the lawful and indefeasible owner of L.R No. 209/12966 (I.R No. 69883); permanent injunction restraining the Plaintiff from interfering with the 3rd Defendant's rights in that property; costs of the counterclaim to the 3rd Defendant; other reliefs declined
- 4.4th Defendant's counterclaim allowed: declaration that the actions purporting to deprive the 4th Defendant of title to LR 209/12965 IR 68738 are illegal and unconstitutional; declaration that the 4th Defendant is the absolute and indefeasible owner of LR 209/12965 IR 68738; permanent injunction restraining the Plaintiff from interfering with the 4th Defendant's rights and quiet possession; costs of the counterclaim to the 4th Defendant borne by the Plaintiff; other reliefs declined
- 5.5th Defendant's counterclaim allowed: declaration that the Chargor is the absolute owner of L.R No. 209/12966; declaration of indefeasible chargee's rights of the 5th Defendant over the property; permanent injunctions restraining interference with the Chargor's ownership and the chargee's interest; declaration that the charges are validly registered encumbrances; costs of the counterclaim to the 5th Defendant; other reliefs declined
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land claims (Plaint dated 20th February 2019); Article 165(3) of the Constitution referenced in relation to constitutional claims
Relief refused
#All reliefs sought by the Plaintiff in the Plaint dated 20th February 2019 (declarations of nullity of allotment letters, grants, deed plans and charges; cancellations; eviction; permanent injunction)
The Plaintiff failed to discharge the burden of proving fraud and illegality; the suit properties were unalienated government land lawfully alienated under presidential authority, and the estate of the allottee was not joined
Declaration that the EACC lacks power to sue for recovery of public land (3rd Defendant's counterclaim prayer)
Omnibus constitutional challenge without citing specific provisions must be brought by way of constitutional petition
Compensation/indemnity claims in the 3rd, 4th and 5th Defendants' counterclaims
Not expressly granted - remaining reliefs at the foot of the counterclaims were declined
Costs
Costs of the suit awarded to the Defendants; costs of the counterclaims awarded to the 3rd, 4th and 5th Defendants respectively (the 4th Defendant's counterclaim costs to be borne by the Plaintiff/1st Defendant to the counterclaim)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Plaintifi's suit vide Plaint dated the 20th February 2019 be and is hereby dismissed.
A declaration be and is hereby issued to the efiect that the 3rd Defendant/2nd Counter claimer is the lawful and indefeasible owner of L.R No. 209/12966 [I.R No. 69883].
A declaration be and is hereby issued that the Plaintifi in the Counterclaim [4th Defendant] is the absolute and indefeasible owner of the property comprised in LR 209/12965 IR 68738.
A declaration be and is hereby issued that the Plaintifi to the counterclaim [5th Defendant] has indefeasible Chargee's rights over the suit property known as L.R No. 209/12966.
the land in question namely, L.R No. 209/6237 [which birthed the suit properties] upon reversion to the Government of Kenya became an unalienated Government land and thus same was amenable to alienation/allocation subject to compliance with the provisions of the Government Land Act [now repealed].
Section 107, 108 and 109 of the Evidence Act, Chapter 80 Laws of Kenya applies to all and sundry, the Plaintifi not excepted.
surrender may arise and accrue by operation of law or otherwise by the formal handing over [submission] of the certificate of title to the Chief Land Registrar.
Issues in the judgment
#The case number and neutral citation are not stated anywhere in the judgment text supplied
The Plaint pleads a letter of allotment dated 27th September 2019 while the evidence and submissions throughout refer to 27th September 1995 - an evident typographical error in the Plaint as reproduced
The costs order in the disposition is garbled/self-contradictory: it simultaneously awards costs to the Defendants and to the Plaintiff
The Plaintiff's pleading date is given as 20th February 2019 although the suit is described as 'dated the 20th February 2019' while reliefs reference allotments of 1995/1996; also the affidavit/witness statement of PW1 is inconsistently dated 25th July 2019 and 25th July 2015 in the same paragraph
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics & Anti-Corruption Commission v Agwata & 4 others; I&M Bank Limited & 2 others (Plaintiffs to the Counterclaim); Ethics and Anti-Corruption Commission & 4 others (Defendant to the Counterclaim) (Environment and Land Case Civil Suit 56 of 2019) [2024] KEELC 7404 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7404/eng@2024-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.