The Attorney General & 1 other v Rahimkhan Afzalkhan Rahimkhan & 4 others
The bottom line
#Kenya's Court of Appeal confirmed the Land Registrar acted unlawfully in cancelling a coastal property title, but slashed the record Kshs.9.855 billion compensation and ordered a fresh valuation.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the 1st and 2nd respondents to sue on behalf of co-proprietors
The 1st and 2nd respondents, as administrators of the deceased, could institute the petition on behalf of the 3rd to 5th respondents without signed authorization; Article 258 broadens standing.
The Court invoked Article 258 and the settled shift away from strict common law standing in Bill of Rights enforcement, as articulated in Mumo Matemu and Randu Nzai Ruwa. The rights alleged related to proprietorship of the suit property and could not be adjudicated to the exclusion of the 3rd to 5th respondents. The Court concurred with the learned Judge that no written authority was required.
Validity of the cancellation of the LCB consent and of the respondents' title
The Chief Land Registrar had no power to cancel either the Land Control Board consent or the registered title; the cancellation was unlawful and the respondents' title stood.
The Land Control Act contains no provision permitting the Registrar to cancel a consent, and section 8(2) makes the Board's decision final subject only to statutory appeal. Section 17 RLA permits cancellation only of obsolete entries. Sections 142 and 143 RLA reserve rectification to the court in cases of fraud or mistake. The appellants also could not approbate and reprobate by admitting the registration while denying it.
Whether the conduct of the appellants violated the respondents' rights and amounted to unlawful compulsory acquisition
The appellants' conduct violated the right to property and amounted to an unlawful compulsory acquisition, but no other alleged rights were infringed.
The property had been subdivided and developed by third parties and could not be restored; the acquisition occurred outside the confines of section 75 of the former Constitution, which required prompt payment of full compensation under the Land Acquisition Act. The Court departed from the trial court's findings on fair hearing and fair administrative action since the Registrar had no mandate to cancel at all.
Assessment of compensation and damages
The trial court's awards of Kshs.9.855 billion and Kshs.60 million were set aside; the matter was remitted for reassessment of compensation for the compulsory acquisition.
The valuation by a registration officer who admitted the title did not disclose the size of the property, ignored encumbrances and relied only on documents supplied by the respondents was unreliable. Damages for torture lacked evidential foundation; the deprivation was to be vindicated through compensation for compulsory acquisition applying the principles in the Schedule to the Land Acquisition Act.
Legal principles established
#- The Chief Land Registrar has no power under the Land Control Act to cancel a Land Control Board consent; the only avenue is the statutory appeal process.
- Section 17 of the RLA permits cancellation only of obsolete entries that have ceased to have effect, not valid registered titles.
- Under the RLA only a court of law, not the Registrar, could rectify the register by directing cancellation of a registration obtained through fraud or mistake.
- The strict common law rules of locus standi have no place in enforcement of the Bill of Rights; Article 258 governs standing.
- Once proprietary interest is lawfully acquired, it is protected under Article 40 against arbitrary deprivation.
Court orders
#- 1.Set aside the declaration that the deceased and the 3rd to 5th respondents' rights to protection from discrimination, protection of the law, protection from inhuman treatment, human dignity, fair administrative action and fair trial were violated
- 2.Set aside damages for loss of use of property, physical, mental and physiological torture assessed at Kshs.60 million
- 3.Set aside compensation for the suit land assessed at Kshs.9.855 billion
- 4.Remit the matter to any other High Court Judge apart from Ogola, J. for reassessment of compensation due for the compulsory acquisition of the suit property, taking into account encumbrances on the title and the principles in the Schedule to the Land Acquisition Act
- 5.Costs of the appeal awarded to the respondents
- On appeal from
- High Court of Kenya
- Petition No. 47 of 2012
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules (Rule 29(1)(a)) over an appeal from the High Court's constitutional petition jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Attorney General & 1 other v Rahimkhan Afzalkhan Rahimkhan & 4 others", Case Analysis (2019). Court of Appeal at Mombasa (Civil Appeal arising from High Court Petition No. 47 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/386/eng@2019-08-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.