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ELCPartially AllowedNot stated in the judgment as provided

Ethics & Anti-corruption Commission v Gacanja & 2 others (Environment and Land Case 127 of 2019) [2026] KEELC 272 (KLR)

Environment and Land Court
26 January 2026
7,747 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Ethics and Anti-Corruption Commission sued over Machakos Municipality Block 1/623, originally part of LR No. 909/536, which had been set aside for public utility as government housing. The land was allocated to Rameshchandra Nathoo Shah in 1968, surrendered, and reallocated to the Ministry of Health for institutional housing, on which the Government developed a 'pool house' currently occupied by the Sub-County Police Commander. In 1993 letters of allotment were nonetheless issued for plots carved off the compound, including plot 3 to Peter M. Ndunda, then Mayor of Masaku Town Council and a member of the Machakos Plot Allocation Committee. The court found the allotment offer lapsed before acceptance, the Part Development Plan was unapproved and nonexistent in Physical Planning records, and the property was public land unavailable for alienation. The 2nd Defendant, Ndunda's son, took a transfer and obtained a 99-year lease, later charging the property to the 3rd Defendant bank for Kshs 8,000,000. The court held that indefeasibility of title under section 26 of the Land Registration Act does not protect unlawfully acquired property, following Article 40(6) of the Constitution and Torino Enterprises. The plaintiff's case was proved on a balance of probabilities: declarations of nullity were issued against the alienation and charge, the register was ordered rectified, the 2nd and 3rd Defendants' registrations cancelled, a permanent injunction issued, and the property ordered registered in the name of the Cabinet Secretary to the Treasury under Section 56C(2) of the Anti-Corruption and Economic Crimes Act. The 2nd Defendant's counterclaim, including compensation of Kshs 28,000,000, was dismissed with costs. The court followed the Court of Appeal's holding that a former Commissioner of Lands may be sued personally but made no substantive orders against the 1st Defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Who is the lawful proprietor of the land parcel known as Machakos Municipality Block 1/623?
  2. 2.What orders should this court issue?

Key legal issues

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01

Lawful proprietorship of Machakos Municipality Block 1/623 and the effect of indefeasibility of title

Holding

The 2nd Defendant's title was unprocedurally obtained over land already alienated as public land, and the certificate of title afforded no protection

Reasoning

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.

p. 13
02

Whether the alienation to the 2nd Defendant and the charge to the 3rd Defendant were valid

Holding

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

Reasoning

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.

p. 10
03

Whether the former Commissioner of Lands could be sued personally

Holding

Yes, following the Court of Appeal in EACC vs Judith Marilyn Okungu, but no specific orders were sought against him

Reasoning

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.

p. 13

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 5.Cancellation of the registration of the 2nd Defendant as proprietor of Machakos Municipality Block 1/623
  6. 6.Cancellation of the registration of the 3rd Defendant as chargee of Machakos Municipality Block 1/623
  7. 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. 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. 9.Costs of the suit to be borne by the Defendants
  10. 10.The 2nd Defendant's counterclaim is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 13

Specific orders against the 1st Defendant

The plaintiff did not seek any specific orders against the 1st Defendant

p. 13

Costs

Costs of this suit to be borne by the Defendants; the 2nd Defendant's counterclaim dismissed with costs.

Quotable passages

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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;
p. 13Disposition - plaintiff's case proved
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.
p. 3Final orders - registration of the suit property in the Cabinet Secretary to Treasury
I find that the 2nd Defendant has failed to prove his counter claim on a balance of probabilities and it is dismissed with costs.
p. 13Final orders - counterclaim dismissed
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.
p. 8Indefeasibility of title - limit under Article 40(6)
I find that the suit property was public land with public property and therefore not available for allocation for private purposes.
p. 10Public utility land not available for alienation
Costs of this suit to be borne by the Defendants.
p. 13Final orders - costs

Issues in the judgment

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minor

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.

minor

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

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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 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.