Kenya Anti-Corruption Commission v Zurip Properties Limited & another [2019] eKLR

Case Caption:

In the Environment and Land Court at Kisumu; ELC Case No. 820 of 2015 (Formerly HCCC No. 80 of 2009); Kenya Anti-Corruption Commission v Zurip Properties Limited & Wilson Gacanja (1st and 2nd Defendants respectively)

Case URL:

http://kenyalaw.org/caselaw/cases/view/180268

Summary Significance:

N/A

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Sections 3 and 7 of the Government Land Act Cap 280; Laws of Kenya (Repealed)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 26 of the Land Registration Act No. 3 of 2012

Brief Facts:

The Plaintiff contested the 1st Defendantā€™s title to Kisumu Municipality Block 7/522 (the suit property) on the grounds that it had been acquired illegally and unprocedurally from the 2nd Defendant. The Plaintiff averred that the suit property belonged to the Kenya Railways Corporation and had been set aside as a railway reserve via Legal Notice Number 24 of 1986. The Plaintiff sought orders inter alia, declaration that the 1st Defendantā€™s title was void and that its registration as a lessee of the property did not confer good title.

Issues for Determination:

I. Whether the suit land was set apart for use by the Kenya Railway Corporation
II. Whether the suit land was available for allocation to the 1st Defendant
III. Whether the 2nd Defendant acted illegally by issuing a lease over the suit land
IV. Whether both Defendants acted fraudulently in the transaction
V. Whether the 1st Defendant acquired good title to the suit property

Holding:

The court held that the Plaintiff proved that the suit land vested in the Kenya Railways Corporation. Further, as the land had already been alienated for use by the Corporation, it was not available for allocation by the 2nd Defendant. The court also provided that the 2nd Defendant, who was serving as the Commissioner for Lands, had no authority to allocate the suit land to the Defendant under the Government Land Act as such authority was vested in the President only. As they did not tender evidence proving that the allocation was done pursuant to an order from the president, the 2nd Defendant was held to have acted illegally by leasing the land. Consequently, as the 2nd Defendant was not empowered to allocate the land, the 1st Defendant did not acquire good title to the property. The court therefore found for the Plaintiff and granted the prayers it sought.

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