Kenya Anti-Corruption Commission v Ken Deep Construction Limited & another [2019] eKLR

Case Caption:

In the Environment and Land Court at Kisumu; ELC Case No. 686 of 2015; Kenya Anti-Corruption Commission v Ken Deep Construction Limited and Wilson Gacanja (1st and 2nd Defendant’s respectively)

Case URL:

http://kenyalaw.org/caselaw/cases/view/179162

Summary Significance:

Illegally acquired titles are not protected under Section 26 of the Land Registration Act.

Applicable laws:

Article 40 of the Constitution of Kenya, 2010
Section 26 of the Land Registration Act No. 3 of 2012

Brief Facts:

The Plaintiff approached the court seeking orders for the declaration that a lease granted by the 2nd Defendant to the 1st Defendant over Kisumu Municipality Block 7/455 (the suit land) was void and that it did not confer a valid title on the 1st Defendant in respect of the suit land. The Plaintiff also sought the rectification of the land register by cancellation of the 1st Defendant’s interest on the suit property. The suit property had been set aside for use by the Kenya Railways Corporation in 1986.

Issues for Determination:

I. Whether the suit property vested in the Kenya Railways Corporation
II. Whether the allocation of the suit land to the 1st Defendant was illegal and unprocedural
III. Whether the Plaintiff was entitled to the reliefs sought

Holding:

The court held that the Plaintiff proved through evidence and on a balance of probabilities that the suit land was a subdivision of land title number Kisumu Municipality Block 7/ 365 which was at all times vested in the Kenya Railways Corporation. Since the Defendants did not participate in the suit, the Plaintiff’s evidence was uncontroverted. Based on this, the lease for the suit land between the 2nd Defendant and the 1st Defendant was illegal and unprocedural and therefore void. The 1st Defendant’s title, having been acquired illegally, was not protected under the provisions of Article 40 of the Constitution of Kenya and Section 26 of the Land Registration Act. The court therefore granted the Plaintiff’s prayers.

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