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ELCPartially AllowedELC Case No. 175 of 2015· [2017] KEELC 1220 (KLR)

Aster Holdings Limited v City Council of Nairobi & 4 others [2017] KEELC 1220 (KLR)

Environment and Land Court of Kenya
31 October 2017
5,423 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, Aster Holdings Limited, sued the City Council of Nairobi, the Commissioner of Lands, the Registrar of Titles, the Attorney General and Caroget Investment Limited, seeking declarations that its title to the amalgamated property LR No. 1870/V/247 (formerly including LR No. 1870/V/6) was valid, that the 2007 allotment of the suit property to the City Council and its subsequent lease to Caroget were fraudulent and void, rectification of the register, general damages for trespass, vacant possession and costs. The plaintiff had purchased the two parcels in 1993, amalgamated them in 1999 and obtained a 99-year extension in 2001. Caroget was allocated the suit property in 2007 based on a forged deed plan showing a reduced acreage, took forcible possession, and its title, though cancelled by the Registrar, was restored by way of judicial review for breach of natural justice. The court found the limitation issues had already been determined in an unappealed 2011 ruling and declined to revisit them. It held that the plaintiff's acquisition was lawful; that the suit property had been in unbroken private ownership since 1946 and was never available for allocation; that the Fifth Defendant's title was obtained illegally, unprocedurally and through a corrupt scheme and so fell outside the indefeasibility protection of Section 26(1) of the Land Registration Act; and that forgery was proved to the civil standard without forensic evidence. The court entered judgment for the plaintiff with declarations of invalidity, rectification of the register, general damages of Kshs.100,000,000/= against the Fifth Defendant, vacant possession, and permanent injunctions against the First and Fifth Defendants and against the Second and Third Defendants, with costs borne by the First and Fifth Defendants.

Key legal issues

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01

Whether the plaintiff lawfully acquired title to the amalgamated property LR No. 1870/V/247

Holding

The plaintiff lawfully acquired and amalgamated the two properties, obtaining LR No. 1870/V/247 and an extended 99-year lease

Reasoning

The plaintiff purchased the two parcels under registered indentures in 1993, obtained approval for change of user conditional on amalgamation, and the amalgamation was confirmed by the Registrar of Titles and the Survey Department, with a new grant and deed plan No. 234323 issued. The claim that the plaintiff's documents were backdated had no basis.

p. 4
02

Whether the First Defendant acquired a lawful title capable of passing to the Fifth Defendant

Holding

No - the suit property was not available for allocation, and the title was obtained fraudulently through a corrupt scheme involving both the First and Fifth Defendants

Reasoning

The property had been privately owned since 1946 and had ceased to exist independently upon amalgamation. The scheme to allocate it to the Fifth Defendant began in 2006, a forged deed plan with reduced acreage was used, and the original parcel file went missing and was replaced with a temporary file. The title was therefore obtained illegally, unprocedurally and through a corrupt scheme and conferred no good title.

p. 7
03

Whether the Fifth Defendant's reliance on a registered title defeats the plaintiff's claim

Holding

No - Section 26(1) of the Land Registration Act permits challenge of titles acquired illegally, unprocedurally or through a corrupt scheme

Reasoning

Although the Fifth Defendant held a certificate of title restored by judicial review orders, the restoration was only because it had not been heard before cancellation, not because the title was lawful. Since the Fifth Defendant was party to the fraudulent scheme from the beginning, its title fell within the Section 26 exceptions to indefeasibility and could not stand against the plaintiff.

p. 6
04

Whether the plaintiff proved forgery of the deed plan to the required standard

Holding

Yes - the difference in acreage between the two deed plans was sufficient proof of forgery without forensic evidence

Reasoning

The deed plan presented by the Fifth Defendant showed 2.105 hectares while the amalgamated property's plan showed 3.069 hectares, bore the same dates, and part of the amalgamated property had been hived off. Requiring forensic evidence would demand proof beyond reasonable doubt, which is not the civil standard for fraud.

p. 6
05

Whether general damages for trespass were payable

Holding

Yes - the Fifth Defendant, having entered in August 2007 and remained in possession, was liable in trespass and general damages of Kshs.100,000,000/= were assessed

Reasoning

Trespass was proved by the forceful invasion in August 2007 and continued possession for over ten years, keeping the plaintiff off a prime 5.2-acre property in Westlands valued at Kshs.1.8 billion in 2013. Specific damage need not be proved; the court assessed damages having regard to location and value.

p. 8

Legal principles established

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  • A title procured illegally, unprocedurally or through a corrupt scheme is not protected by indefeasibility under Section 26(1) of the Land Registration Act
  • Once land has been alienated to a party, it ceases to be available for allocation to a third party; such allocation is not double allotment but illegal allocation of private property
  • The standard of proof for fraud in civil cases is above balance of probabilities but not beyond reasonable doubt

Court orders

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  1. 1.A declaration that the plaintiff is the sole and lawfully registered proprietor of the suit property (LR No. 1870/V/6) by reason of it being part of LR No. 1870/V/247
  2. 2.A declaration that the allotment of the suit property to the First Defendant on 11th April 2007 by the Commissioner of Lands was unlawful, irregular and void ab initio
  3. 3.A declaration that Grant I.R number 105610 issued to the First Defendant on 25th April 2007 was fraudulent, unlawful, irregular and void ab initio
  4. 4.A declaration that the lease dated 4th May 2007 between the First and Fifth Defendants over LR No. 1870/V/6 was irregular, unlawful and void ab initio
  5. 5.An order directing the Third Defendant to rectify the relevant register and documents and cancel the second grant and the lease issued to the First and Fifth Defendants
  6. 6.A declaration that the Fifth Defendant unlawfully occupied and took possession of the suit property and that these acts amount to trespass
  7. 7.General damages of Kshs.100,000,000/= awarded against the Fifth Defendant
  8. 8.An order directing the First and Fifth Defendants to deliver vacant possession of the suit property to the plaintiff forthwith
  9. 9.A permanent injunction restraining the First and Fifth Defendants from dealing in Grant number 105610 or the suit property
  10. 10.A permanent injunction restraining the Second and Third Defendants from accepting, acting upon or effecting any dealing with the suit property
  11. 11.Costs of the suit to be borne by the First and Fifth Defendants

Authorities

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Legislation

  • Public Authorities Limitation ActSection 3
  • Government Proceedings ActSection 26
  • Government Lands ActSection 136(1)
  • Limitation of Actions ActSection 4
  • Land Registration ActSection 26(1)

Cases cited (4)

  • Fursys (K) Ltd Vs Southern Credit Banking Corporation Limited
    (2015) eKLR
  • Benja Properties Limited Vs H.H Dr Syedna Mohammed Burhannudin Sahed & 4 others
    (2015) eKLR
  • Lazarus Estates Limited Vs Beasley
    (1956) 1 ALL ER 341
  • Park Tower Vs Moses Chege & others
    HC Civil Suit No. 1825 of 1999 (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Aster Holdings Limited v City Council of Nairobi & 4 others [2017] KEELC 1220 (KLR)", Case Analysis (2017). ELC Case No. 175 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1220/eng@2017-10-31

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