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ELCPartially AllowedNot stated in the judgment as provided (plaint dated 07/04/2020)· [2025] KEELC 7065 (KLR)

Nekoye v Ethics and Anti Corruption Commission (Environment and Land Case 12 of 2020) [2025] KEELC 7065 (KLR)

Environment and Land Court
9 October 2025
6,787 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, registered lessee of Bungoma Township/169 (0.18ha, 99-year lease from 01/01/1999), sued seeking declarations that her acquisition from Charles Osioma Nyasani and Scholastica Nyakerario (initial lessees since 2002, originally allotted as Nyasco Enterprises in 1999) was lawful and that the Defendant's investigations and demand for surrender of the property violated Articles 27(1), 28, 40, 47 and 50. The Defendant counterclaimed, alleging the land hosted government House BUNG/HOU/HG/15, was reserved for government housing and was never available for alienation; that the sale of non-strategic houses was cancelled by a circular of 28/07/2008; and that the subsequent validation and transfer to the Plaintiff were fraudulent nullities. The court framed four issues: procedural alienation, entitlement to the plaint prayers, entitlement to counterclaim prayers, and costs. Relying on Munyu Maina, Daudi Kiptugen, Wreck Motors and Dina Management, the court held that the absence of an approved PDP, the pre-existing alienation of the land (approved development plan no.57 of 1995), the continued government occupation, and the subsisting 2008 cancellation circular (which subordinate officers' letters could not override) rendered the entire chain of title irregular. Nemo dat quod non habet precluded the initial lessees passing valid title, and nothing could flow from the illegality (Macfoy). The Plaintiff's suit was dismissed; the counterclaim succeeded except for general damages, for which no evidence was led. The court declared both the 2002 and 2016 leases null and void, cancelled all register entries, ordered rectification by the Bungoma Land Registrar, a permanent injunction, and eviction, with costs of both suit and counterclaim to the Defendant. Judgment delivered at Bungoma on 09/10/2025 by Hon. E.C. Cherono, ELC Judge.

Key legal issues

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01

Whether Bungoma Township/169 was procedurally alienated

Holding

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.

Reasoning

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.

p. 10
02

Whether the Plaintiff is entitled to the prayers in the plaint

Holding

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.

Reasoning

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.

p. 11
03

Whether the Defendant is entitled to the counterclaim prayers

Holding

Yes, save for general damages. Cancellation of entries, rectification, permanent injunction and eviction were granted.

Reasoning

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.

p. 12
04

Non-joinder of the initial lessees and government officials

Holding

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.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 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. 6.An order of eviction directing the Plaintiff, his servants, agents or assigns to vacate Bungoma Township/169.
  7. 7.Costs of the Plaintiff's suit and the Counter-claim awarded to the Defendant.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27(1), 28, 40, 40(6), 47, 50, 62(1)(a) and (d)
  • Land Registration ActSection 26
  • Registration of Titles Act (repealed), Cap 281Section 23
  • Evidence ActSections 107(1), 107(2), 108
  • Physical Planning Act (repealed), Cap 286Section 16
  • Government Lands Act (repealed), Cap 280Section 3
  • Civil Procedure ActSection 27
  • Fair Administrative Actions ActNot specified

Cases cited (22)

  • Nakel Investments Limited v Ministry of Transport, Infrastructure, Housing and Urban Development & another
    [2024] KEELC 3971
  • Koinange v Koinange
    [1986] KLR 23
  • Ratilal Gordhanbhai Patel v Lalji Makanji
    [1957] EA 314
  • Ulmila Mahindra Shah v Barclays Bank International & Another
    [1979] KLR
  • Edward Mwangi Irungu v Chief Land Registrar & Others
    [2018] KEELC 201
  • Pashito Holdings Ltd & Another v Paul Ndungu & 2 Others
    [1997] eKLR
  • African Line Co. Ltd v Attorney General
    [2007] eKLR
  • Kenya Anti-Corruption Commission v Lima Limited & 2 others
    [2019]
  • Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others
  • Dr. Joseph Arap Ng'ok v Justice Moijo Ole Keiyua & 4 others
  • Arthi Highway Developers Ltd v West End Butchery Ltd & others
    [2015] eKLR
  • Noreen Sharifi & others v Chief Land Registrar & 2 others; Amusement Garden Ltd (Interested Party)
    [2019] eKLR
  • Dina Management Ltd v County Government of Mombasa & 5 others
    [2023] KESC 30
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Daudi Kiptugen Vs. Commissioner of Lands & 4 Others
    (2015) eKLR
  • African Line Transport Co. Ltd vs. The Hon. Attorney General, Mombasa HCCC No. 276 of 2013
    [2014] eKLR
  • Nelson Kazungu Chai & 9 Others v Pwani University
    [2014] eKLR
  • Wreck Motors Enterprises v Commissioner of Lands & 3 Others
    [1997] eKLR
  • James Joram Nyaga & Another v The Hon. Attorney General & Another
    [2007] eKLR
  • Paul Nderitu Ndung'u & 20 Others –V- Pashito Holdings Limited & Another
    Nairobi HCCC No. 3063 of 1996
  • Kenya Anti-Corruption Commission v Online Enterprises Limited & 4 others
    [2019] eKLR
  • Macfoy v United Africa Co. Ltd
    [1961] 3 All ER 1169
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

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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, "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.