Chemey Investment Limited v Attorney General & 2 others [2018] eKLR.

Case Caption:

The Court of Appeal at Nairobi; Civil Appeal No. 349 of 2012; Chemey Investment Limited v Attorney General, Permanent Secretary Ministry of Health and Ethics and Anti-Corruption Commission.

Case URL:

http://kenyalaw.org/caselaw/cases/view/147058

Summary Significance:

The sanctity of title was never intended or understood to be a vehicle for fraud and illegalities or an avenue for unjust enrichment at public expense

Applicable laws:

●Section 75 (1), (6) of the former constitution
●Sections 27, 28, 48, 143 of the repealed Registered Land Act
●Article 40 (6) of the Constitution of Kenya, 2010.

Brief Facts:

This is an appeal from the decision of the High Court in which the court stated at all material times, the suit property, Eldoret Municipality/Block 4/57 where Uasin Gishu District Hospital is situated was public property and the appellant’s purported title thereto was fraudulently acquired, is tainted by fraud to which the appellant was party, and is therefore not protected by the Constitution or laws of this land. The Appellant was evicted from the suit property and the same reverted back to the hospital. The appellant, Chemey Investment Limited, a limited liability company aggrieved by this decision, alleged that the Respondents violated with impunity its constitutional right to property when they evicted it from the parcel of land. Hence this appeal. The appellant put forth four grounds of appeal, in which it impugns the judgment of the High Court for failing to find that the respondents violated its right to property under section 75 (1) of the former Constitution; for not holding that its eviction from the suit property was illegal; for failing to grant relief merely because the appellant was under investigation by the KACC; and for failing to hold that the appellant was a bona fide purchaser for value.

Issues for Determination:

Whether the appellant had proprietary rights in the suit property that were worthy of protection under section 75(1) of the former Constitution, thus entitling it to the declaration it had sought, as well as an order for possession.

Holding:

The court was confronted with two conflicting scenarios; The fact that the respondents repossessed the illegally transferred suit property in an equally illegal manner, without a court order. In this regard, the Court stated that it could not give a seal of approval to self-help, high-handed tactics, or violation of the law in order to right what is perceived to be a wrong. However, this was a case of two wrongdoers, one having fraudulently acquired land set aside for public use and the other having restored the land back to public use without following the prescribed procedure. The suit property is now used as a public health facility in the form of Uasin Gishu District Hospital. Both the appellant and the respondents would be entitled to invoke public interest in aid of their respective cases. To the respondents, it is in public interest to ensure that property set apart for public use that is fraudulently transferred to a private individual is restored back to public use. To the appellant, it is in public interest to ensure that the law is strictly followed to address any grievance the respondents may have; otherwise the result will be the law of the jungle and utter chaos. The learned judge at the High Court preferred to err on the side of public interest that would resort in restoration of the suit property to public use. In the peculiar circumstances of this appeal, the court was not persuaded that there was any basis for it to interfere with the High Court decision, even though it did not approve of the self-help tactics adopted by the Respondents. Further noting that that the appellant’s registration was not a first registration within the meaning of section 143 of the repealed Act and in addition the evidence left no doubt that the appellant had actual knowledge of the fraud that ultimately led to registration of the suit property in its name. The court, having carefully re-evaluated the evidence on record, agreed with the High Court and declined the orders sought by the Appellant. The appeal was dismissed with costs to the respondents.

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