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ELCPartially AllowedPlaint dated 10th August 2023· [2025] KEELC 3864 (KLR)

Kakamega County Assembly Service Board v Shah & another (Land Case E005 of 2023) [2025] KEELC 3864 (KLR)

Environment and Land Court
15 May 2025
DOD. O. Ohungo
1,700 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court cancelled a fraudulently obtained title to public land in Kakamega, proving that even registered titles can fall to proven fraud.

What this practically means

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Executive summary

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The Plaintiff, a body corporate established under Section 12 of the County Governments Act, sued over Kakamega/Municipality Block 4/465, claiming it was public land inherited by the Kakamega County Assembly from the erstwhile Kakamega County Council upon devolution. It alleged the First Defendant fraudulently acquired the leasehold interest and sought declarations to that effect, plus an order compelling the County Land Registrar to revoke his registration and reinstate Kakamega County Council. The First Defendant did not enter appearance; the Second Defendant filed a defence denying fraud but neither attended the hearing nor filed submissions, and its case was closed for non-attendance. The Plaintiff's sole witness, the Clerk to the County Assembly, proved a 99-year lease with effect from 1st December 1990 subject to Special Condition 9 prohibiting alienation without written consent, and NLC findings that the First Defendant's title lacked a PDP, consents and National Land Approval, contravening the transition-period moratorium. The court, applying Sections 24 and 26 of the Land Registration Act and authorities on the strict proof of fraud, held that the title's prima facie protection was displaced because the transfer lacked the required written consent and the land was earmarked for public amenities. It found fraud proved to the requisite higher standard and allowed the claim as against the First Defendant, issuing the two declarations and the revocation/reinstatement order, but declined to award costs because none were prayed for.

Key legal issues

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01

Whether the First Defendant's title to the suit property was fraudulently acquired

Holding

Yes; the transfer lacked the written consent required by Special Condition 9 of the lease and the property was earmarked for public purposes, so the Plaintiff established fraud to which the First Defendant was party

Reasoning

The court accepted the uncontroverted evidence that the lease to Kakamega County Council forbade alienation without the written consent of the County Council of Kakamega, and that no such consent accompanied the transfer to the First Defendant. Special Condition 5 showed the land was earmarked for public offices and amenities, rendering it unavailable for alienation. The NLC investigation corroborated the irregularities. Fraud was therefore strictly proved notwithstanding the title's prima facie protection under Section 26 of the Land Registration Act.

p. 4
02

Whether an unchallenged title is impeachable

Holding

Yes; a title acquired illegally, unprocedurally or through a corrupt scheme is open to impeachment despite statutory protection

Reasoning

Relying on Sections 24 and 26 of the Land Registration Act, the court acknowledged that registration vests absolute ownership and that a certificate of title is prima facie evidence. However, the statutory provisos permit nullification where the proprietor was party to fraud or misrepresentation, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. Those thresholds were met on the evidence.

p. 3

Legal principles established

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  • A certificate of title is prima facie evidence of proprietorship but may be nullified on proof of fraud or of illegal, unprocedural or corrupt acquisition
  • Fraud must be pleaded, particularised and strictly proved to a standard higher than balance of probabilities but lower than beyond reasonable doubt

Court orders

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  1. 1.A declaration that the parcel of land known as Kakamega Municipality Block 4/465 is the property of Kakamega County Assembly having been inherited by virtue of devolution, from the erstwhile Kakamega County Council
  2. 2.A declaration that the acquisition of the parcel by the First Defendant was fraudulent hence his title over the said parcel is unlawful, null and void
  3. 3.An order directing the Second Defendant to revoke the registration of the First Defendant as proprietor of title number Kakamega Municipality Block 4/465 and to reinstate Kakamega County Council as the registered proprietor as lessee over the said title
  4. 4.No order as to costs

Authorities

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Legislation

  • County Governments ActSection 12
  • Transition to Devolved Government Act, 2012
  • Constitution of Kenya, 2010Article 40
  • Land Registration ActSection 24
  • Land Registration ActSection 26(1)(a) and (b)

Cases cited (4)

  • Kuria Kiarie & 2 others v Sammy Magera
    [2018] eKLR
  • John Mbogua Getao v Simon Parkoyiet Mokare & 4 others
    [2017] eKLR
  • Kinyanjui Kamau v George Kamau Njoroge
    [2015] eKLR
  • Ndolo vs Ndolo (2008) 1 KLR (G & F) 742
    (2008) 1 KLR (G & F) 742
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over land within Kakamega County; plaintiff established under Section 12 of the County Governments Act

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, "Kakamega County Assembly Service Board v Shah & another (Land Case E005 of 2023) [2025] KEELC 3864 (KLR)", Case Analysis (2025). Plaint dated 10th August 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3864/eng@2025-05-15

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