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ELCOtherNot stated in the judgment· [2024] KEELC 7404 (KLR)

Ethics & Anti-Corruption Commission v Agwata & 4 others; I&M Bank Limited & 2 others (Plaintiffs to the Counterclaim); Ethics and Anti-Corruption Commission & 4 others (Defendant to the Counterclaim) (Environment and Land Case Civil Suit 56 of 2019) [2024] KEELC 7404 (KLR)

Environment and Land Court of Kenya
7 November 2024
34,554 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~138 min to read original · ~4 min brief

The bottom line

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The High Court's land division dismissed the EACC's attempt to cancel two Nairobi properties, confirming the current owners and I&M Bank's charges are protected.

What this practically means

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Executive summary

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The Ethics and Anti-Corruption Commission sued the former Commissioner of Lands, the Chief Land Registrar and three transferee/chargee parties, seeking declarations that the 1995/1996 allotment of L.R No. 209/6237 to the late Hon Sharif Nasir, the resulting grants (LR 209/12966 IR 69883 and LR 209/12965 IR 68738), the parallel deed plans and the charges in favour of I&M Bank were null and void, together with cancellations, eviction and a permanent injunction. The 3rd, 4th and 5th Defendants filed counterclaims asserting indefeasible ownership, chargee's rights and compensation. The EACC's case was that the land had been alienated in 1962 to the East African Common Services Authority and was therefore unavailable for allocation. The court held that upon the collapse of the Authority, Section 4 of the Treaty of East Africa Community Mediation Agreement Act vested its assets in the Government, extinguishing the prior interests so the land reverted to unalienated government land available for alienation. The court further found the allocation was made under presidential direct authority (D/A) and was preceded by approved Part Development Plans; the EACC failed to discharge the burden of proving fraud, never having interrogated the presidential authority file. The 3rd and 4th Defendants were held to be bona fide purchasers for value without notice after extensive due diligence, and the Bank's registered charges were upheld. Non-joinder of the deceased allottee's estate also defeated the first declaration. The Plaintiff's suit was dismissed with costs, and all three counterclaims were allowed: declarations of indefeasible ownership in favour of the 3rd and 4th Defendants, validation of the Bank's charges, and permanent injunctions restraining the EACC, with costs to the respective counterclaimants. Residual counterclaim reliefs, including compensation claims, were declined.

Key legal issues

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01

Whether the suit properties were unalienated government land available for allocation

Holding

The interests of the East African Common Services Authority lapsed upon its collapse; the land reverted to the Government and became unalienated government land available for alienation; the Plaintiff failed to prove any subsisting alienation or reservation

Reasoning

The court applied Section 4 of the Treaty of East Africa Community Mediation Agreement Act under which the Authority's assets vested in Kenya. The 1962 letter of allotment and grant in favour of the Authority stood extinguished, the original title having been informally surrendered to the Chief Land Registrar. The mere presence of a government house did not amount to reservation, and the Plaintiff produced no evidence of any reservation; it therefore failed to prove the land was alienated.

p. 44
02

Whether the allocation to Hon Sharif Nasir was lawful

Holding

The alienation was lawful, being underpinned by a presidential direct allocation (DA) and preceded by preparation and approval of Part Development Plans; the Plaintiff failed to prove the pleaded fraud and illegality

Reasoning

The court found the PDPs were prepared by the directorate of physical planning and approved by the Commissioner of Lands before the letters of allotment issued. The letters of allotment bore a presidential authority (D/A) which the EACC investigator never interrogated. The Attorney General's statement of defence confirmed the legality of the alienation, and the Plaintiff adduced no evidence to impeach the presidential authority or discharge the burden of proving fraud.

p. 48
03

Whether the 3rd and 4th Defendants were bona fide purchasers for value without notice

Holding

Yes - both undertook due diligence and are bona fide purchasers for value without notice; the 5th Defendant's chargee's rights are also valid

Reasoning

Both transferees procured official searches, wrote to and obtained the Commissioner of Lands' consent/clearance to the transfers, paid consideration, and dealt with a vendor holding registered grants. Government departments confirmed the propriety of the titles. The court found these facts satisfied the Katende/Kamere criteria for a bona fide purchaser and grounded a legitimate expectation, entitling the 3rd and 4th Defendants to legal protection and validating the charges in favour of the Bank.

p. 55
04

Effect of non-joinder of the estate of Hon Sharif Nasir on the Plaintiff's first declaration

Holding

The court could not issue declarations impacting the rights of the deceased's estate which was not joined, as that would offend Article 50(1)

Reasoning

The first declaration sought in the Plaint would affect the estate of the deceased allottee, who was never joined as a party. The court held that issuing such declarations against a non-joined person would contravene the right to be heard under Article 50(1) of the Constitution, an additional independent ground for refusing the relief.

p. 56

Legal principles established

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  • Upon collapse of the East African Common Services Authority, its assets within Kenya reverted to and vested in the Government of Kenya by virtue of Section 4 of the Treaty of East Africa Community Mediation Agreement Act, and land so reverted became unalienated government land amenable to lawful alienation
  • Surrender of a certificate of title may arise by operation of law or by informal handing over of the title to the Chief Land Registrar, without a formal registered surrender instrument
  • The burden of proving fraud and illegality rests on the party alleging it, and a constitutional commission enjoys no exemption from the rules of evidence
  • Title to public land lawfully comes into existence upon issuance of a letter of allotment, compliance with its terms and issuance of a title document under the relevant statute
  • A party alleging unconstitutionality of an action must plead with precision the constitutional provisions impugned, preferably by way of constitutional petition; omnibus invitations are impermissible

Court orders

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  1. 1.The Plaintiff's suit vide Plaint dated the 20th February 2019 dismissed
  2. 2.Costs of the suit awarded to the Defendants
  3. 3.3rd Defendant's counterclaim allowed: declaration that the 3rd Defendant is the lawful and indefeasible owner of L.R No. 209/12966 (I.R No. 69883); permanent injunction restraining the Plaintiff from interfering with the 3rd Defendant's rights in that property; costs of the counterclaim to the 3rd Defendant; other reliefs declined
  4. 4.4th Defendant's counterclaim allowed: declaration that the actions purporting to deprive the 4th Defendant of title to LR 209/12965 IR 68738 are illegal and unconstitutional; declaration that the 4th Defendant is the absolute and indefeasible owner of LR 209/12965 IR 68738; permanent injunction restraining the Plaintiff from interfering with the 4th Defendant's rights and quiet possession; costs of the counterclaim to the 4th Defendant borne by the Plaintiff; other reliefs declined
  5. 5.5th Defendant's counterclaim allowed: declaration that the Chargor is the absolute owner of L.R No. 209/12966; declaration of indefeasible chargee's rights of the 5th Defendant over the property; permanent injunctions restraining interference with the Chargor's ownership and the chargee's interest; declaration that the charges are validly registered encumbrances; costs of the counterclaim to the 5th Defendant; other reliefs declined

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40; Article 50(1); Article 62; Article 156; Article 165(3)
  • Government Land Act, Chapter 280 (now repealed)Sections 2, 3, 4, 5, 7, 9
  • Registration of Titles Act, Chapter 281 (now repealed)Sections 41(1), 44
  • Survey Act, Chapter 299Not specified
  • Evidence Act, Chapter 80Sections 107, 108, 109
  • Treaty of East Africa Community Mediation Agreement ActSection 4
  • Physical Planning Act, Chapter 286 (now repealed)Section 3; Section 29 referenced in quoted authority
  • Land Registration Act, 2012Sections 24 and 25
  • Valuation ActNot specified
  • Civil Procedure Rules, 2010Order 2 Rule 6
  • Ethics and Anti-Corruption ActNot specified
  • Anti-Corruption and Economic Crimes ActNot specified
  • Land Planning Act, cap 303 (repealed)Regulation 11(3) (as quoted in Dina Management)

Cases cited (26)

  • Benja Properties Limited v Syedna Mohammed Burhannudin Sahed, Mohammed Fidaali Hebatullah, Huseesinbahal Ahemdali Hebatullah, Attorney General & Commissioner For Lands
    Civil Appeal 79 of 2007 [2015] KECA 457 (KLR)
  • Philemon L. Wambia v Gaitano Lusitsa Mukofu, Attorney General & Settlement Fund Trustees
    Civil Appeal 115 of 2017 [2019] KECA 157 (KLR)
  • Nathan Tirop Koech, Zacharia Kimutai Kosgei, Ezekiel Kiptoo & Ernest Kibet v Chief Lands Registrar, Registrar of Titles, Ministry of Lands, Director of Surveys, Attorney General & National Land Commission
    Civil Application 7 of 2019 [2019] KECA 279 (KLR)
  • Mwinyi Hamisi Appeal v Attorney General
    Civil Appeal No. 125 of 1997
  • Frann Investment Limited v Kenya Anti-Corruption Commission & 6 others
    Civil Appeal E038 of 2021 [2024] KECA 714 (KLR)
  • Kiluwa Limited & Another v Business Liaison Company Limited & 3 Others
    Petition 14 of 2017 [2021] KESC 37 (KLR)
  • Torino Enterprises Ltd v The Attorney General
    SC Petition No. 5 (E006) of 2022 [2023] KESC 79 (KLR)
  • Dina Management Limited v County Government of Mombasa & 5 others
    Petition 8 (E010) of 2021 [2023] KESC 30 (KLR)
  • Nelson Kazungu Chai & 9 others v Pwani University
    [2014] eKLR
  • African Line Transport Co Ltd v Attorney General
    Mombasa HCCC No 276 of 2003 [2007] eKLR
  • Agnes Nyambura Munga (suing as the Executrix of the Estate of the late William Earl Nelson) v Lita Violet Shepard
    [2018] eKLR
  • Miller v Minister of Pensions
    (1947)
  • D. T. Dobie & Company (K) Ltd v Wanyonyi Wafula Chebukati
    [2014] eKLR
  • Gwer & 5 others v Kenya Medical Research Institute & 3 others
    Petition 12 of 2019 [2020] KESC 66 (KLR)
  • Raila Odinga & others v Independent Electoral & Boundaries Commission & others
    Petition No. 5 of 2013
  • Joseph N.K. Arap Ng'ok v Moijo Ole Keiwua & 4 others
    [1997] eKLR
  • Kenya Revenue Authority v Export Trading Company Limited
    Petition 20 of 2020 [2022] KESC 31 (KLR)
  • Katende v Haridar & Company Ltd
    [2008] 2 EA 173
  • Samuel Kamere v Lands Registrar, Kajiado
    Civil Appeal No 28 of 2005 [2015] eKLR
  • Moya Drift Farm Ltd v Theuri
    (1973) EA 114
  • Nguruman Ltd v Jan Bonde Nielsen & Others
    [2014] eKLR
  • Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae)
    Petition E018 of 2023 [2024] KESC 34 (KLR)
  • Onyango v Attorney General
    [1987] eKLR
  • Speaker, County Assembly of Kisumu and Others v The Clerk, Kisumu County Assembly Service Board and Others
    [2015] eKLR
  • Mohansons (Kenya) Limited v Registrar of Titles & 2 others
    [2017] eKLR
  • Dakianga Distributors Ltd v Kenya Seed Company [K] Limited
    [2015] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land claims (Plaint dated 20th February 2019); Article 165(3) of the Constitution referenced in relation to constitutional claims

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ethics & Anti-Corruption Commission v Agwata & 4 others; I&M Bank Limited & 2 others (Plaintiffs to the Counterclaim); Ethics and Anti-Corruption Commission & 4 others (Defendant to the Counterclaim) (Environment and Land Case Civil Suit 56 of 2019) [2024] KEELC 7404 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7404/eng@2024-11-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.