Ethics & Anti-corruption Commission v Gacanja & 2 others (Environment and Land Case 127 of 2019) [2026] KEELC 272 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a Machakos land title and bank charge, ruling land reserved for public housing can never be privately allocated.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who is the lawful proprietor of the land parcel known as Machakos Municipality Block 1/623?
- 2.What orders should this court issue?
Key legal issues
#Lawful proprietorship of Machakos Municipality Block 1/623 and the effect of indefeasibility of title
The 2nd Defendant's title was unprocedurally obtained over land already alienated as public land, and the certificate of title afforded no protection
The court traced the history of LR 909/536: allocated to Rameshchandra Nathoo Shah in 1968, surrendered, reallocated to the Ministry of Health for institutional housing, and a government pool house developed thereon. The Part Development Plan used to subdivide the land did not exist in Physical Planning records, the allotment offer to Peter Ndunda had lapsed before acceptance, and the land was public utility land not available for alienation. Section 26 indefeasibility yields to Article 40(6) of the Constitution.
Whether the alienation to the 2nd Defendant and the charge to the 3rd Defendant were valid
Both the alienation and the charge are null and void ab initio; the register was ordered rectified and the property registered in the name of the Cabinet Secretary to the Treasury under Section 56C(2) of the Anti-Corruption and Economic Crimes Act
Because the suit property had been reserved for public utility for government housing, it was not available for allocation. Peter Ndunda, the Mayor and a member of the Plot Allocation Committee, acquired the land in conflict of interest and after the offer had lapsed; the transfer to his son conferred no title, and the charge erected on that void title fell with it.
Whether the former Commissioner of Lands could be sued personally
Yes, following the Court of Appeal in EACC vs Judith Marilyn Okungu, but no specific orders were sought against him
The court noted the settled position that the office-holder who was Commissioner of Lands may be sued personally. However, the plaintiff sought no specific relief against the 1st Defendant, so no substantive order was made against him save costs.
Legal principles established
#- Indefeasibility of title under section 26 of the Land Registration Act does not protect property acquired illegally, unprocedurally or through a corrupt scheme, being subject to Article 40(6) of the Constitution
- Land set aside for public utility is not available for allocation to private individuals, and any grant or charge founded on such allocation is null and void
- A former Commissioner of Lands may be sued in his personal capacity
Court orders
#- 1.A declaration that the land parcel number Machakos Municipality Block 1/623 originally part of LR. No. 909/536 was set aside and/or reserved for public utility for government housing and therefore not available for alienation
- 2.A declaration that the alienation of land parcel number Machakos Municipality Block 1/623 to the 2nd Defendant is null and void ab initio and incapable of conferring any rights, interests or title
- 3.A declaration that the creation of a charge over land parcel number Machakos Municipality Block 1/623 in favour of the 3rd Defendant is null and void ab initio and incapable of conferring any rights, interests or title
- 4.An order of rectification of the register by cancellation of all entries pursuant to the purported transfer of Machakos Block 1/623 and restoration of the parcel to the Government
- 5.Cancellation of the registration of the 2nd Defendant as proprietor of Machakos Municipality Block 1/623
- 6.Cancellation of the registration of the 3rd Defendant as chargee of Machakos Municipality Block 1/623
- 7.A permanent injunction restraining the 2nd and 3rd Defendants from trespassing upon, selling, transferring, leasing, developing, wasting or otherwise dealing with Machakos Municipality Block 1/623
- 8.Machakos Municipality Block 1/623 to be registered in the name of the Cabinet Secretary to the Treasury in terms of Section 56C(2) of the Anti-Corruption and Economic Crimes Act
- 9.Costs of the suit to be borne by the Defendants
- 10.The 2nd Defendant's counterclaim is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over land; suit for declarations of nullity of alienation and charge, rectification of register and registration under Section 56C(2) of the Anti-Corruption and Economic Crimes Act
Relief refused
#2nd Defendant's counterclaim (declarations of ownership, compensation of Kshs 28,000,000, permanent injunction, special damages of Kshs 2,712,318 and mesne profits)
The suit land was public land not available for allocation for private purposes; the counterclaim was not proved on a balance of probabilities
Specific orders against the 1st Defendant
The plaintiff did not seek any specific orders against the 1st Defendant
Costs
Costs of this suit to be borne by the Defendants; the 2nd Defendant's counterclaim dismissed with costs.
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.
I find the Plaintifi has proved their case on a balance of probabilities and I grant the following orders;
Machakos Municipality Block 1/623 be registered in the name of Cabinet Secretary to Treasury in terms of Section 56C (2) of the Anti-Corruption and Economic Crimes Act.
I find that the 2nd Defendant has failed to prove his counter claim on a balance of probabilities and it is dismissed with costs.
Guided by the provisions of Article 40 (6) of the Constitution, we hold that the concept of indefeasibility or conclusive nature of title is inapplicable to the extent that title to the suit land was unlawfully acquired.
I find that the suit property was public land with public property and therefore not available for allocation for private purposes.
Costs of this suit to be borne by the Defendants.
Issues in the judgment
#The suit property is inconsistently described in the pleading recitals as the subject of allotments: at one point Peter M. Ndunda and Mutua Kilaka are said to have been allotted 'plot number 3 and 4', while elsewhere Mutua Kilaka 'who was allotted plot 3 being Block 1/624' and the 2nd Defendant pleads his father was allotted 'unsurveyed residential plot No. 3 Machakos' corresponding to Block 1/623.
The judgment is dated 26th January 2026 but the narrative refers to a Third Party notice dated 27th July 2023 and events up to 29th October 2024; also the 1st Defendant's alternative plea of limitation is described both as 'more than twenty (20) years after he ceased to hold ofice' and '16 years after he left ofice'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics & Anti-corruption Commission v Gacanja & 2 others (Environment and Land Case 127 of 2019) [2026] KEELC 272 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/272/eng@2026-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.