Ethics and Anti-Corruption Commission v Wilson Gacanja & 3 Others; Nairobi City Council (Interested Party) [2020] eKLR

Case Caption:

In the Environment and Land Court at Nairobi; ELC Case No. 5 of 2008; Ethics and Anti-Corruption Commission v Wilson Gacanja, Rockville Limited, Standard Assurance Kenya Limited, Wilson Kipkoiti, and Nairobi City Council (Interested Party.

Case URL:

http://kenyalaw.org/caselaw/cases/view/204939

Summary Significance:

’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:

Sections 3 and 7 of the Government Land Act Cap 280; Laws of Kenya (Repealed)

Brief Facts:

The dispute in this suit revolves around the legality of Grant Number IR 74856 (expressed as comprising Land Reference Number 209/6238) made to Rockville Limited (2nd Defendant) by a letter of allotment dated 19/11/1997 by the then Commissioner of Lands, Mr Wilson Gacanja (1st Defendant). The Grant was subsequently registered as Number IR 74856/1 on 21/11/1997. On 15/7/2002, the Grant was transferred to Standard Assurance Limited (3rd Defendant) through a charge registered by the 2nd Defendant. The Plaintiff averred that there were two government houses on the suit land which were alienated for use as housing quarters by staff of the Kenya School of Law by the Ministry of Public Works. It further averred that the 1st Defendant proceeded to allocate the land despite the fact that it was not available for alienation. The Plaintiff sought the following orders: a declaration that the letter of allotment dated 19/11/1997 is void, a declaration that the grant over the suit land is void, a declaration that the transfer of the suit land to the 3rd Defendant is void, for the cancellation of the letter of allotment in favour of the 2nd Defendant, the revocation of the title documents granted in favour of the 2nd and 3rd Defendants and a permanent injunction restraining the 2nd and 3rd Defendants from interfering with the suit land in any manner.

Issues for Determination:

I. Whether the grants made in favour of the 2nd Defendant by the 1st Defendant were valid instruments of title relating to LR 209/6238
II. Whether the Plaintiff was entitled to the reliefs sought

Holding:

The court held that the suit land had been surveyed, alienated, titled (registered), and developed, hence it was not unalienated public land available for allocation. It also held that there was no evidence that the title issued to the office of the AG had been surrendered to the Commissioner of Lands and cancelled to make the land available for fresh alienation, resurvey, and re-titling. The court added that the Defendants had not tendered any evidence to prove that the title was allocated procedurally under the President’s executive power under Section 3 of the Government Lands Act as they had asserted. The court cited the Court of Appeal in Chemey Investment Limited v Attorney General & 2 Others [2018] eKLR where the court held that “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.” In light of the many illegalities surrounding the grant, the court held that it was void ab initio. The court granted the prayers sought by the Plaintiff.

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