Land Titles Revocation By Gazette Notice Illegal
Isaac Gathungu Wanjohi & Another Vs the Attorney General & 6 Others  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  eKLR where the court held that the Registrar of Titles had no authority to cancel a title by way of a 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. Article 40(6) provides that the protection on rights to property do not extend to any property found to have been unlawfully acquired.
The respondents also averred that since the title of the suit property was revoked vide a Gazette Notice which had revoked several titles including the petitioners’, such title was no longer in existence and the procedure for compulsory acquisition of land set out in the Land Acquisition Act could therefore not apply. They further pointed out that the public benefits of construction of the Mombasa Road far outweighed the private interests of the petitioners.
It was the respondents’ contention that furthermore, the revocation of the title had been done after a consultative process, the Government having on the 26th January, 2011constituted a task force known as Private Sector Working Group on Land Acquisitions for the Nairobi Urban Toll Road and Bypasses whose recommendations included that certain land titles be revoked.
In making its determination, the court was wary of two other pending suits closely touching on same property whose disposition would consequentially determine ownership and legality of the petitioners’ title and steered away from granting some of the orders sought in the petition which would in effect determine the pending suits to the prejudice of the parties in those suits.
Justice Majanja in this case observed that the state’s claim that the suit property was acquired illegally was an issue that needed to be settled through the due process of the law as contemplated under Article 40(6) of the Constitution. The state was required to strictly follow the laid down procedures as was held in the case of Commissioner of Land & Another v Coast Acquaculture Limited KLR (E & L) 264.
On finding that the petitioners’ right to the due process under Article 47 of the Constitution had been violated, the court awarded a sum of 1million Kenya shillings to the petitioners not as compensation but as damages ‘to vindicate the petitioner’s right to due process which had been infringed.’
While upholding an earlier court finding in the Kuria Greens Limited case, the court opined that ‘unlawful acquisition’ referred to in Article 40(6) of the Constitution had to be through a legally established process and not by whim or revocation of the Gazette Notice as the Commissioner of Lands had purported to do. Hence, such action was illegal, null and void in so far as it purported to revoke that title, the court said.
The court further found that the respondents’ assertion that the revocations were pursuant to recommendations by a task force could not hold water because even such consultative processes could in no way be a substitute for due process nor justify the taking away of the petitioner’s title by way of a Gazette Notice. In any case, such recommendations bore no force of law.
The court was however reluctant to grant the relief of injunction observing that the remedy was an equitable and discretionary remedy and that the court had to weigh the respective interests of the respective parties. In finding that the petitioners’ interests must yield to the public interest, the court noted that there was an option for the petitioners in this case to pursue the state for full compensation and damages in the event the court found that the property had been unlawfully acquired, and the state would be able to satisfy such claim for damages. The court accordingly adopted the words of the court in the case of Maisha Nishike Limited v Commissioner of Lands and Others where it was stated: “The project that has stalled is of great public benefit. There is no denial that the government is likely to pay a considerable amount of liquidated damages due to delay in finalisation of the project. The ex-parte applicant does not stand to gain at all from such delay.”
The court further directed that if the State wished to commence legal proceedings to establish the legality or otherwise of the parcel of land in question, it could do so within 12 months from the date of the judgment.