REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MALINDI
ELC LAND CASE NO. E081 OF 2024
FRED KITHUSI KULA ………………………………………PLAINTIFF
VERSUS.
RECSTON KATANA …………………………………..1ST DEFENDANT
NATIONAL LAND COMMISSION. ………………2ND DEFENDANT
CHIEF LAND REGISTRAR. …………………………3RD DEFENDANT
JUDGMENT
1. The suit before the Court was commenced by the plaintiff herein by a plaint dated the 23rd day of September, 2021, seeking the following prayer:
a) An order directing the 3rd defendant to rectify the Register by canceling the 1st Defendant's name from the land parcel known as Kilifi/Jimba/372 and registering the plaintiff's name as the proprietor of the suit property.
b) Costs of this suit.
c) Interest on 2 above at Court rates. 4. Any other relief this Honorable Court may deem fit to grant in the circumstances.
2. The 1st defendant did not enter any appearance nor file any defense.
3. The 2nd defendant entered an appearance on the 26th day of October 2021
4. The 3rd defendant entered an appearance and filed a defense dated February 24, 2022.
5. At the hearing, the 1st and 2nd defendants did not attend to defend.
6. The matter proceeded between the plaintiff and the 3rd defendant.
7. After the close of the matter, the Court directed the participating counsel to file written submissions. I acknowledge receipt of submissions from counsel for the plaintiff and the 3rd defendant with much appreciation, as they went a long way to assist the Court in reaching its verdict.
8. Arising from the materials and submissions placed before me, the issues I frame for the determination of this suit are whether an order should issue directing the 3rd defendant to rectify the Register by canceling the 1st defendant's name against the land parcel known as Kilifi/Jimba/372 and to have the plaintiff's name registered as the proprietor of the suit property.
9. At the hearing, the plaintiff, Fred Kithusi Kula, testified as PWI and adopted his witness statement dated September 23, 2023. He also called two witnesses, both of whom are his neighbors.
10. Plaintiff led evidence that he has been residing in Jimba since 1992 on a parcel of land known as Kilifi/Jimba/372 measuring 3.5 acres. In 2007, a task force from the Ministry of Lands came to Jimba to conduct a field report and prepare a register of the correct occupants. His name was recorded as the occupant of the said land parcel
11. In 2009, a second task force was sent to confirm the first list, and the plaintiff was again recognized. In 2010, the plaintiff proceeded to the Kilifi Land Office to confirm whether his name was indeed captured in the final list submitted to the Registrar. At that point, the Plaintiff learned that the name Recston Katana had been recorded against the land parcel known as Kilifi/Jimba/372. Recston Katana has never been seen on the suit property, and no one knows him.
12. In the plaintiff's submissions, the Court was referred to the letter dated the 20th day of February, 2010, which is Plaintiff Exhibit No. 2. The letter was written by the assistant chief of Jimba Sub-location and addressed to the National Land Commission. It states that the suit property was registered in the name of someone who has never been on the ground. The person on the ground is Mr. Fred Kithusi Kula, who has lived there since the 1990s and has a house he built. He has been living there all that time.
13. Furthermore, the letter dated 29th May 2011 from the Kilifi/Jimba Settlement Scheme Land Committee affirms that the plaintiff was the initial developer of the said plot. He has been present on the site since 1992 and has undertaken development activities, including constructing a permanent homestead, excavating a well, and planting casuarina and coconut trees. This letter was submitted as Plaintiff Exhibit Number 3.
14. The 3rd defendant called One Martin Kimuhu Nyamu, who testified as DW1, the Malindi-Magarini Land Adjudication and Settlement Officer, and produced the entire adjudication record, which shows that, according to the record, the first allottee of the suit property was one Njoroge Mutunga.
15. Subsequently, the 2nd defendants conducted investigations into titles in that area and found that the land legally belonged to the 1st defendant, and they regularized it in his name by Gazette Notice.
16. On the issue of whether the plaintiff should be declared the rightful owner of the suit property, the plaintiff asserts that he should be registered, given that he has been on the ground and that the local land committee and the area administration have recognized him.
17. Plaintiff submits that Sections 79 and 80 of the Land Registration Act (2012) are designed to correct errors, mistakes, or fraud in land titles. Under Section 80, the Court can order rectification, including canceling the title obtained through fraud or mistake. Section 80(2) provides that the Register shall not be rectified to affect the title of a proprietor unless the proprietor knew of the omission, fraud, or mistake in consequence of which the rectification is sought, or caused such omission, fraud, or mistake, or substantially contributed to it by any act, neglect, or default.
18. To the plaintiff, this matter constitutes an error in omitting the plaintiff from the registration matrix.
19. On the contrary, the 2nd defendant contends that the plaintiff has no title in the first place and has not proved that the registered owner obtained it through fraud or misrepresentation.
20. We are dealing with a matter in which the plaintiff seeks the cancellation and rectification of the register. The only evidence the plaintiff presented was that he had been in occupation of the land. He never presented evidence that the land had been allocated to him through an elaborate adjudication process or under the SFT Program. He anticipated that the land ought to have been allocated to him.
21. The methods of acquisition of title to land in Kenya are as stated in Section 7 of the Land Act:
“Methods of acquisition of title to land
Title to land may be acquired through—
(a)allocation;
(b)land adjudication process;
(c)compulsory acquisition;
(d)prescription;
(e)settlement programs;
(f)transmissions;
(g)transfers;
(h)long term leases exceeding twenty-one years created out of private land; or
(i) any other manner prescribed in an Act of Parliament.”
22. The plaintiff did not lead evidence to suggest that he is entitled to the suit property under the methods I have laid out above. The closest he came was through adverse possession, which he did not pursue in this matter.
23. In Henry Muthee Kathurima v Commissioner of Lands & another [2015] KECA 892 (KLR), cited to me by the 3rd defendant, the Court of Appeal held that:
“In this appeal, the appellant submitted that he has a legitimate expectation that his title to the suit property is absolute and indefeasible. An illuminating consideration of the concept of “legitimate expectation” is found in the South African case, South African Veterinary Council -v- Szymanski, 2003(4) S.A. 42 (SCA) at [paragraph 28] the Court held as follows:
“The law does not protect every expectation but only those which are 'legitimate”.
15. In the instant appeal, one of the issues for our consideration is whether the appellant can legally be said to have legitimate expectation to have quiet possession of the suit property. As we have stated above, we concur with the trial court’s finding that the appellant un-procedurally and thus unlawfully acquired title to the suit property. A relevant excerpt from Republic –v- Nairobi City County & Another ex parte Wainaina Kigathi Mungai, High Court Judicial Review Misc. case No. 356 of 2013; [2014] eKLR thus reads [paragraph 33]:
“…the legal position is that legitimate expectation cannot override the law.
16. Article 40 (6) of the Constitution clearly stipulates that the right to property does not extend to property that has been found to have been unlawfully acquired. The appellant relied on the doctrine of estoppel urging that the Commissioner of Lands is estopped from denying that he has a good title. It is our view that estoppel cannot be used as shield to protect unlawfully acquired property; estoppel cannot be used to circumvent Constitutional provisions and estoppel cannot override express statutory procedures; there can be no estoppel against a statute. (See Tarmal Industries Ltd. – v- Commissioner of Customs & Excise, (1968) E.A. 471; see also Maritime Electric Co. Ltd. v General Dairies Ltd. (1937) 1 All ER 748). The trial court made a finding of fact that the suit property was unlawfully acquired. Guided by the provisions of Article 40 (6) of the Constitution, it is our finding that the doctrine of legitimate expectation cannot be used to protect property that has been unlawfully acquired. We find that the appellant cannot rely on this doctrine to circumvent the provisions of Article 40 (6) of the Constitution. Further, the doctrine of legitimate expectation cannot oust clear statutory provisions of the Government Lands Act on how to alienate public land. It is our view that Sections 3, 7, 9 and 12 of the Government Lands Act cannot be ousted by estoppel and the doctrine of legitimate expectation. Due process must be followed to alienate public land before legitimate expectation can arise. There cannot be a legitimate expectation without adherence to statutory or constitutional provisions. It has been held in several persuasive authorities, R. v. Devon County Council, ex parte Baker & Another, [1995] 1 All. E.R. 73; R. v. Durham County Council, ex parte Curtis & Another, [1992] 158 LG Rev R 241 (CA) and R. v. DPP ex p. Kebilene [1993] 3 WLR 972, that no legitimate expectation can override clear statutory provisions.”
24. As already noted, nothing has been put forward to impeach the title held by the 1st defendant, other than the plaintiff's anticipation that he has been on the ground for a long time and expected to have been registered, perhaps as noted under the adjudication process or under the SFT program. It never happened.
25. In a nutshell, the plaintiff has not provided a basis for me to cancel the 1st defendant's title in his favor.
26. Adverse possession would have been the easier way to acquire title to this land if the 1st defendant cannot be found.
27. Consequently, the plaintiff’s suit lacks merit and is hereby dismissed with costs to the participating litigators.
Dated, signed, and delivered virtually in Nyeri on this 9th day of July 2026.
E. K. MAKORI
JUDGE
In the Presence of:
Mr. Otara for the Plaintiff
Mr. Munga for the 3rd Defendant
Denis - Court Assistant
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