Nekoye v Ethics and Anti Corruption Commission (Environment and Land Case 12 of 2020) [2025] KEELC 7065 (KLR)
The bottom line
#Kenya's Environment and Land Court voided two leases over Bungoma Township/169, ruling that a title document alone doesn't prove lawful ownership.
What this practically means
#Executive summary
#Key legal issues
#Whether Bungoma Township/169 was procedurally alienated
No. The land had already been alienated and was reserved for government housing (House BUNG/HOU/HG/15); the 1999 allotment to Nyasco Enterprises was made without an approved PDP and in disregard of the existing government house, and the 2008 cancellation of the sale of non-strategic houses remained operative.
The certified PDPs (D-Exhibit 36) showed the land was alienated and registered as early as 1995 under approved development plan no.57. Without an approved PDP no valid allotment can issue, and land already alienated cannot be re-allocated. The 28/07/2008 circular cancelling the sale was never revoked, and subordinate officers' letters could not override the Permanent Secretary's directive; payments made in 2009 could not cure the illegality.
Whether the Plaintiff is entitled to the prayers in the plaint
No. The Plaintiff's certificate of lease, being founded on an irregular root title, is a nullity and cannot be protected under section 26 of the Land Registration Act or Article 40.
Applying Munyu Maina and Daudi Kiptugen, the Plaintiff had to prove the legality of the acquisition process. Having found the original lease irregularly acquired, the doctrine of nemo dat quod non habet precluded the initial lessees from passing any valid interest to the Plaintiff; subsequent validation letters and payments could not legitimize the illegality.
Whether the Defendant is entitled to the counterclaim prayers
Yes, save for general damages. Cancellation of entries, rectification, permanent injunction and eviction were granted.
The Defendant proved that the allotment and lease were irregular and that the Plaintiff was not a bona fide purchaser. General damages failed for want of evidence quantifying the claim. Costs followed the event under section 27 of the Civil Procedure Act.
Non-joinder of the initial lessees and government officials
Non-joinder was not fatal; the initial lessees could confer no valid title and the burden lay on the Plaintiff to enjoin any parties she considered necessary.
The Court held the principle of nemo dat quod non habet dispositive: since the first lease was irregularly acquired, the lessees could pass no proprietary interest. Any obligation to join them rested on the Plaintiff as the party moving the Court.
Legal principles established
#- A registered proprietor whose root of title is under challenge must prove the legality of the acquisition, not merely produce the title instrument
- The process of acquisition of title is material; title acquired through improper process is not good title
- Land already alienated and reserved for a public purpose cannot be the subject of a fresh or parallel allocation; such allocation is a nullity ab initio
- Nothing can flow from an illegality; a title irregularly issued cannot be legitimized
- Subordinate officers cannot by administrative correspondence override a formal ministerial directive; cancellation could only be reversed by a circular of equal or higher authority
Court orders
#- 1.A declaration that the Certificate of Lease registered on 18th October 2002 in favour of Charles Osiomi Nyasani and Scolastica Nyakerario over Bungoma Township/169 was fraudulently obtained, is null and void and incapable of conferring any interest to the Plaintiff and/or any other person whatsoever.
- 2.A declaration that the lease registered on 24th October 2016 in favour of the Plaintiff over Bungoma Township/169 was fraudulently obtained and is illegal, null and void ab initio.
- 3.A declaration that all entries relating to the issuance of the Certificate of Lease issued on 24th October 2016 to the Plaintiff in respect of Bungoma Township/169 are cancelled.
- 4.An order directing the Land Registrar, Bungoma Land Registry, to expunge from the records and/or rectify the register by cancellation of all entries relating to the Certificate of Lease purportedly issued to the Plaintiff on 24th October 2016, together with all subsequent entries in respect of Bungoma Township/169.
- 5.An order of permanent injunction restraining the Plaintiff, his agents, servants, employees or assigns from subdividing, charging, trespassing upon, transferring, leasing, wasting or otherwise dealing with Bungoma Township/169.
- 6.An order of eviction directing the Plaintiff, his servants, agents or assigns to vacate Bungoma Township/169.
- 7.Costs of the Plaintiff's suit and the Counter-claim awarded to the Defendant.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land title and registration disputes (dispute over Bungoma Township/169); no specific provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nekoye v Ethics and Anti Corruption Commission (Environment and Land Case 12 of 2020) [2025] KEELC 7065 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (plaint dated 07/04/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7065/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.