Julie Nyawira Mathenge -vs- Kenya School of Government &The Attorney-General and Ethics and Anti-Corruption Commission (Interested Party) [2022] eKLR

Case Caption:

In the High Court of Kenya at Nairobi (Milimani Law Courts); Civil Suit 679 of 2006; Julie Nyawira Mathenge v Kenya School of Government, The Chief Land Registrar, The Attorney General (1st, 2nd and 3rd Defendants) and the Kenya Anti-Corruption Commission (EACC).

Case URL:

http://kenyalaw.org/caselaw/cases/view/231119/

Summary Significance:

An illegally acquired title is not protected under Article 40 of the Constitution of Kenya and Section 26 of the Land Registration Act.

Applicable laws:

Article 40 of the Constitution of Kenya, 2010
Sections 3 and 7 of the Government Land Act Cap 280; Laws of Kenya (Repealed)
Section 65 (1) (f) of the Registration of Titles Act, Cap 281; Laws of Kenya
Section 26 of the Land Registration Act No. 3 of 2012

Brief Facts:

The Plaintiff was allegedly allocated plot number 11509 by the Commissioner of Lands, who informed her that it initially belonged to the 1st Defendant. However, she was informed that the 1st Defendant had surrendered the same for commercial use. The Plaintiff intended to construct a petrol station and other amenities but was informed by professionals that the land was too narrow on the side facing the road, which would make it difficult for large vehicles delivering fuel to turn. Following this advice, she applied to be allocated plot Nos. 11510 and 11511 which had also been surrendered by the 1st Defendant. She was allocated the suit properties and issued with titles in July 1997. However, the Plaintiff was unable to commence construction as there were buildings in the suit properties that were set for demolition by the Ministry of Roads and public works. That despite repeatedly writing letters to the Ministry, they never responded, forcing her to halt her development plans. In May 2006, the Plaintiff learnt that the 1st Defendant was reconstructing some shops that had been partially destroyed by fire on Plot Nos. 11510 and 11511. She demanded that the 1st Defendant vacate her property through her advocates. She avers that the 1st Defendant responded, claiming that the two plots belonged to it. The Plaintiff then attempted to fence the two plots but her attempts were thwarted using force by the 1st Defendant. Following this, she conducted searches on the two plots and discovered that the 2nd Defendant had registered caveats on the properties claiming to have an interest in them. The Plaintiff then filed the present suit but her title was revoked vide Legal Notice Number 15580 dated 26th November 2010 while the suit was pending. The Plaintiff sought orders inter alia, a declaration that the suit properties did not constitute public land, that the 2nd Defendant’s action cancelling her title violated her rights under Articles 40,47, 62 and 64 of the Constitution and that the cancellation was unlawful as she was the legal owner of the suit properties. The 1st Defendant filed a counterclaim seeking a declaration that the Plaintiff’s titles were obtained fraudulently and for cancellation of the illegal titles.

Issues for Determination:

I. Whether the Plaintiff acquired the suit properties lawfully
II. Whether the Plaintiff had valid title to the suit properties
III. Whether the 1st Defendant Trespassed on the suit properties
IV. Whether the Plaintiff’s Titles were lawfully revoked
V. Whether the Plaintiff is entitled to the reliefs sought
VI. Whether the 1st Defendant is entitled to the reliefs sought

Holding:

The court held that the suit properties were part of 7 plots reserved for the Kenya Institute of Administration which was the 1st Defendant’s predecessor, making the properties alienated Government Land. Therefore, the 1st Defendant was at all times the in possession of the suit properties and at no time had it been dispossessed of them. Further, it was held that the minutes of the meeting at which the 1st Defendant purportedly surrendered the land for use in the construction of a shopping center did not support this assertion. The only land discussed for possible alienation was plot No. 11509, to be used for the construction of the petrol station. Its alienation was to take place through advertisement. However, the plans to construct the shopping center never materialized and were abandoned. Further, even if the land had been set for alienation, the Commissioner of Lands did not have the authority to allocate the land. Under the Government Land Act (Repealed), such authority was vested in the President only. Therefore, the court concluded that the Plaintiff’s title was acquired unlawfully and unprocedurally. Consequently, these titles fell outside the protection conferred by Article 40 of the Constitution of Kenya 2010 and Section 26 of the Land Registration Act due to its illegality. Consequently, the 1st Defendant was not a trespasser as it owned the suit property at all material times. Finally, the court held that the Plaintiff was not entitled to the reliefs sought due to the invalidity of her title. The Court granted the 1st Defendant’s prayers for a declaration that the titles were obtained fraudulently and for cancellation thereof.

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