Katangi Developers Limited V Attorney General & another [2021] eKLR

Case Caption:

Environment and Land Court, Kisumu, Petition No. 10 of 2019; Katangi Developers Limited versus The Attorney General, Kenya Railways Corporation (Respondents), Ethics and Anti-Corruption Commission (Interested Party).

Case URL:

http://kenyalaw.org/caselaw/cases/view/207478/

Summary Significance:

The Petition challenged cancellation of title by the Government without affording the Petitioner a chance to be heard and without compensation. The Court affirmed the right to property under Article 40 of the Constitution and that the same cannot be limited without following due process as enshrined under Article 47 and 50 of the Constitution or without appropriate compensation in the case of compulsory acquisition.

Applicable laws:

●Article 40 of the Constitution of Kenya, the right to property;
●Article 47 of the Constitution of Kenya, the right to a fair administrative action;
●Article 50 of the Constitution of Kenya, the right to be heard.

Brief Facts:

The Petitioner claimed to be the registered proprietor as lessee from the Republic of Kenya of parcels of land or plots in Kisumu Municipality/Block 7/414, 415, 417, 419, 420, 421, 422, 424, 425, 426, 429, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, and 440. The Petitioner was summoned by the Ethics and Anti-Corruption Commission (EACC) to answer to allegations of irregular acquisition of subject properties reserved for use by Kenya Railways Corporation (KRC). Subsequently, officers from various security agencies descended on the Petitioner's properties, verbally informing the Petitioner's tenants, employees, and representatives that the suit properties were the property of KRC and that they had repossessed the same. The Petitioner claimed that the Government and KRC arbitrarily deprived them of their right to access, occupation, and use of property in brazen violation of their fundamental rights enshrined and protected in Article 40 (3) of the Constitution. The Petitioner was apprehensive that the Respondents would proceed to unilaterally revoke and/or cancel its leases. In response to the Petition, the Respondents averred that the suit properties were public land falling within the larger parcel of land on the Kisumu Port owned by KRC and that the Petitioner was un-procedurally holding Certificates of Lease, and the same ought to be canceled. The Respondents further averred that the suit properties were part of the land that was previously reserved and vested in the General Manager for the East African Railways and Habours Administration vide Legal Notice No. 440 of 1963 issued under the Kenya (Vesting of Land) Regulations of 1963 for the administration and control of railway and habour services. Therefore, the land was not available for alienation by the Commissioner of Lands or any other entity as the land did not fall under alienated Government land as defined by the repealed Government Lands Act

Issues for Determination:

I.Whether The Petitioner’s Constitutional right to acquire and own property and in particular the property Kisumu Municipality/Block 7/414, 415, 417, 419, 420, 421, 422, 424, 425, 426, 429, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439 and 440, was violated.
II.Whether the act of cancellation of the Petitioner’s title without a hearing breached the Petitioner’s Constitutional right to a fair hearing.

Holding:

The court held that the said legal notices did not affect the property because the same had already been alienated to private persons by the Crown with the consent of the East Africa Railways and Harbours by dint of a grant and transfer. The court further held that the Petitioner holds a valid title to the disputed properties and that the act of cancelling the Petitioner's title without a hearing was unconstitutional and in breach of Articles 47 and 50 of the Constitution. The court also found that forcibly taking the Petitioner's properties by registering them in the name of KRC was in breach of the provisions of Article 40 of the Constitution. The court granted the Petitioner's declaration that their constitutional rights to acquire and own property and not be deprived of it had been violated by the actions of the Respondents.

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