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ELCPartially AllowedNot stated in the judgment· [2014] KEELC 92 (KLR)

Flemish Investments Ltd v Town Council Of Mariakani [2014] KEELC 92 (KLR)

Environment and Land Court / High Court of Kenya at Mombasa
30 October 2014
SMS. Mukunya
1,972 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that two acres with a public cattle dip were fraudulently added to a private title, and the buyer cannot keep them.

What this practically means

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Executive summary

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Flemish Investment Company Ltd sued the Town Council of Mariakani seeking a permanent injunction to restrain interference with construction of a perimeter wall on LR No. 24366, plus special damages of Kshs. 180,000 per month from 1st June 2010. The Council defended and counterclaimed against the plaintiff and Victor Ndambuki (the 1st defendant from whom the plaintiff bought the land), alleging the title fraudulently included two acres set aside as a community cattle dip. The Council sought declarations that the dip (plot No. 34 in Kawala 'B' adjudication section) remains a public utility, that the lease does not include the two acres, and injunctions. Evidence showed the land was trust land, set apart to Ndambuki for ten acres; the cattle dip had been built by Kilifi County Council in 1978 for public use and never belonged to the sellers, the Katetei brothers. The court held that Ndambuki fraudulently included the two acres bearing the dip in his title, and the plaintiff, which knew of the dip and even asked the Council to relocate it at its own cost, was not a bona fide purchaser of that portion. The special damages claim was found to have no merit. The plaintiff's suit was dismissed with costs. The counterclaim succeeded in terms of prayers (a), (b), (c) and (e), with the two acres to be hived off the suit land and registered in the name of Kilifi County Government in trust for the people of Mnagoni area for use as a cattle dip.

Key legal issues

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01

Whether the two acres containing the cattle dip form part of LR 24366

Holding

The two acres were fraudulently included in the title by Victor Ndambuki; they were never available for sale and do not belong to the plaintiff

Reasoning

The court traced the setting apart of the land: Ndambuki applied for ten acres, approved by the Clerk to Council, District Land Officer and District Commissioner. The cattle dip, built by Kilifi County Council in 1978 for the public, was on land the Katetei brothers did not own and could not sell. Ndambuki included the dip land merely because it abutted the highway, which the court held was fraudulent.

p. 3
02

Whether the plaintiff was a bona fide purchaser of the two acres

Holding

The plaintiff was not a bona fide purchaser because it knew the dip was on the land and even asked the council to relocate it at its own cost

Reasoning

The plaintiff's conduct - requesting the council to relocate the dip at the plaintiff's cost rather than seeking its removal through court - showed knowledge that the dip was public utility property. Under the principle that properties attached to land belong to the land, the plaintiff could not claim the dip or the two acres in good faith.

p. 3

Legal principles established

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  • A public utility set apart on trust land cannot be fraudulently incorporated into a private title and must remain a public utility
  • A purchaser who knows of an existing public utility on the land cannot be a bona fide purchaser for value of that portion

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs
  2. 2.The two (2) acres where the cattle dip sits shall be hived off the suit land and registered in the name of Kilifi County Government in trust for the people of Mnagoni area and for use as a cattle dip
  3. 3.The counterclaim succeeds and is allowed in terms of prayers (a), (b), (c) and (e)
Jurisdiction invoked
Original civil jurisdiction over land disputes; trust land issues considered under the Trust Land Act Cap 288

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, "Flemish Investments Ltd v Town Council Of Mariakani [2014] KEELC 92 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/92/eng@2014-10-30

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