REVOCATION OF LAND
TITLES BY GAZETTE NOTICE
ILLEGAL
By Mukaindo Petronella
Isaac Gathungu Wanjohi &
Another Vs the Attorney
General & 6 Others [2012]
eKLR (
www.kenyalaw.org )
High court, at Nairobi-
Constitutional and Human
Rights Division
D.S. Majanja (J)
Date: 30th March, 2012
"The act of respondents
carrying out the revocation of
title through a process that
lacks legal recognition and
thereafter entering the
property of the petitioners is
clear breach of the
petitioners’ due process
rights. Even where the
Constitution does not
recognize rights unlawfully
acquired, it does not give the
State and its agencies a carte
blanche to do as it wishes
outside the confines of the
law."
The High Court has reiterated
the legal position that
revocation of land titles by
way of gazette notices is
unconstitutional and
ineffectual. Holding that such
land revocations must be
through a legally established
mechanism, the
Constitutional and Human
Rights Division of the court
stated that due process of
the law had to be followed
even in cases of compulsory
acquisition of land. It is
immaterial that such land
titles may have been acquired
irregularly because even such
assertions were subject to be
proved through a court
process. It is likewise
irrelevant whether the
process leading to the
revocation is based on
recommendations arising
from a consultative process
such as a task force because
according to the court, such
recommendations have no
force of law and hence cannot
be a substitute to following
the due process of the law.
This holding arose from yet
another case that concerns
land that is situated at the
junction of Airport Road
and the Mombasa-Nairobi
Road and is part of land that
was intended for construction
of the Eastern Bypass. The
Ministry of Roads, the
commissioner of Lands and
Kenya Urban Roads Authority
were some of the
respondents in this petition.
The petitioners in this case
contended that the trespass
upon their land was an
infringement of their right to
property protected under
Article 40 of the Constitution.
Dr Kuria, counsel for the
petitioners emphasized on
the doctrine of indefeasibility
of title and the protections
afforded to property by the
Constitution of Kenya and
maintained that the grant
issued to the petitioners
constituted a contractual
obligation by the State which
could not be revoked at a
whim without due process.
The counsel further relied on
the case of Kuria Greens
Limited v Registrar of Titles
and Another [2011] eKLR
where the court held that the
Registrar of Titles had no
authority to cancel a land title
by way of gazette notice and
that only a court could do so
when the title in question was
been obtained through fraud
and or mistake and only
where it was not a first
registration.
It was the petitioners’
assertion that it was the
state’s duty to uphold the law
and it was unacceptable for it
to use the nature of the
project to circumvent the
provisions of law. The
petitioners argued that in so
far as the state had acted
arbitrarily and failed to
observe the law, it was liable
for damages and asked the
court to grant amounts
totaling to kshs 7.5 million,
being an award for general
and exemplary damages
against the respondents.
The petitioners further sought
for a court declaration that
the respondents had
contravened their right to
property under Article 40(1)
and (3) of the Constitution
and asked the court to grant a
permanent injunction
restraining the respondents
from allowing the Eastern
by-pass to pass across their
land or any further
interference with the suit
property.
The respondents on the other
hand contended that the land
in question had been planned
and set aside as a buffer zone
for Mombasa Road way back
in the 1980’s and that the
zone was intended for the
future expansion of
Mombasa Road. Mr Mutinda,
state counsel representing the
respondents argued that
registration of the petitioners
as proprietor of the suit
property was fraudulent
because it knowingly and
wrongfully defeated the
unregistered interest of the
Ministry of Roads to the road
buffer zone set aside for
Mombasa Road expansion
and that therefore, the
petitioners did not deserve
protection of the court in
accordance with Article 40(6)
of the Constitution
TULIA.........UFUNZWE!